Meyer’s K9 Law

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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from May 2022. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.)

As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.

This month, I have included an article on the possible dissipation of probable cause when deploying a K9. Please give it a read.

Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.

(Disclaimer: I do not represent any individuals, handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)

MARIJUANA UPDATE FOR MAY 2022

North Carolina Senate passed medical marijuana legislation with a bipartisan vote.

Rhode Island became the 19th state to legalize adult-use cannabis for recreational use. Rhode Islanders age 21 and up to possess up to one ounce in public or up to 10 ounces at home, home-cultivate up to six plants, no more than three mature, and purchase limited amounts of cannabis from state approved dispensaries.

Delaware‘s governor nixed a proposal to legalize simple recreational possession (up to one ounce). It has decriminalized marijuana possession of one ounce. In addition, Delaware allows for medical marijuana for a qualifying medical condition.

South Dakota cannabis advocates say the adult-use legalization question that will appear on the ballot this November is more narrowly tailored than the one struck down by the state Supreme Court last year.

New Hampshire lawmakers this week nixed two bills to create a regulated adult-use cannabis regime.

The Ninth Circuit has held that the 2018 federal Farm Bill that legalized hemp nationwide also legalized some products containing Delta-8 THC, a psychoactive chemical compound derived from hemp.

ARTICLE ON DISSIPATION OF PROBABLE CAUSE: WHAT HAPPENS TO YOUR INVESTIGATION WHEN YOUR K9 FAILS TO ALERT IN CERTAIN SITUATIONS?

It is well settled law that an alert/final indication from a well-trained, properly deployed scent detection K9 provides LE probable cause. For example, a K9 team is often involved in a traffic stop where the K9 is deployed for a free air sniff of the vehicle. Once the K9 alerts/gives a final indication of the vehicle, LE now has probable cause to search the entire vehicle for the substance(s) on which the K9 is trained to alert/give final indication. “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” US v. Ross (1982) 456 US 798, 825. (A reminder: the automobile exception in most states eliminates the need to get a search warrant to search the vehicle in this situation; however, some states require additional elements. Please check with your local prosecutor).

Once probable cause is established, is there a possibility that it can dissipate? A K9’s failure to alert to the presence of narcotics is a relevant factor in determining whether probable cause exists. US  v. Jodoin (1st Cir. 1982) 672 F.2d 232, 236, abrogated on other grounds by Bloate v. US (2010) 559 U.S. 196. The courts have stated that if there are facts that arise during the investigation that mitigate or dissipate probable cause, LE must consider that information in their assessment of probable cause. “[A]n investigative stop must cease once reasonable suspicion or probable cause dissipates.” US v. Watts (8th Cir. 1993) 7 F.3d 122, 126 (citations omitted) and US v. Bey (3rd Cir. 2018) 911 F.3d 139. However, “having once determined that there is probable cause to arrest, an officer should not be required to reassess his probable cause conclusion at every turn, whether faced with the discovery of some new evidence or a suspect’s self-exonerating explanation from the back of the squad car.” Thompson v. Olson (1st Cir. 1986) 798 F.2d 552, 556.

So, as a LE officer, you are required to take all information into account and if the evidence rises to the level that negates probable cause, you no longer can proceed with a search or arrest.

When can this happen for a K9 team? Circuits are divided over whether a K9’s failure to alert necessarily destroys an officer’s reasonable suspicion. The Eighth and Tenth Circuits have held that a dog’s failure to alert on a package does not automatically dissipate reasonable suspicion, holding that the factors giving rise to reasonable suspicion in the first place remain unchanged by a K9 search. See US v. Lakoskey (8th Cir. 2006) 462 F.3d 965, 977 (quoting US v. Ramirez (10th Cir. 2003) 342 F.3d 1210, 1212. However, the Sixth Circuit has held that when a drug-detection dog with a ninety-percent success rate fails to alert on an automobile, reasonable suspicion is dispelled. US v. Davis (6th Cir. 2005) 430 F.3d 345, 356.

With these concepts in mind, Hernandez v. Boles (2020) 949 F.3d 251 provides a unique scenario. In this case, Hernandez was a passenger in a vehicle that was stopped by LE for speeding. All routine checks indicated the occupants were clear. When consent to search was refused, a second, more comprehensive data base search was started and before that was completed, the K9 team arrived and performed a free air sniff of the vehicle. The K9 alerted to the vehicle. Instead of proceeding on the probable cause given by the K9’s alert, the handler then opened all the doors and let the K9 sniff the interior. The K9 did not alert; instead, he ate some of the fast food that was present in a bag in the interior of the vehicle. After quickly extracting the K9, the handler then shook hands with all the occupants and gave them a thumbs up. The handler then told the investigating LE that he was sorry. LE reported to his supervisor that the K9 did not hit. However, the vehicle was searched anyway and contraband was found.

Hernandez sued for violation of his civil rights after all criminal charges were dismissed and a motion for summary judgment was filed. The court analyzed two cases, US v. Bowling (6th Cir. 1990) 900 F.2d 926 and US v. Davis (6th Cir. 2005) 430 F.3d 345. In Bowling, LE searched a trailer home pursuant to a search warrant a few hours after other LE had conducted a consent search of the premises and found nothing. The court held that the proposition that “where an initial fruitless consent search dissipates the probable cause that justified a warrant, new indicia of probable cause must exist to repeat a search of the same premises.” Id. at 932. However, the Bowling court declined to suppress the evidence because the evidence was found outside of the area searched during the earlier fruitless search. In Davis, the court held that officers no longer had reasonable suspicion to detain a motorist on suspicion of drug possession and call a second drug-sniffing dog to the scene after the first drug-sniffing dog did not alert; “[o]nce the drug-sniffing dog was brought to the scene and failed to alert positively . . . , the officers’ suspicions that Davis was in possession of narcotics were dispelled.”

The Hernandez court therefore indicated that based on Bowling and Davis, a reasonable jury could find in Hernandez’ favor. Bowling stood for the proposition that a fruitless search negates probable cause, if it is sufficiently thorough, and Bowling stood for the proposition that a drug dog’s failure to alert dispels suspicion. Viewing the evidence in the light most favorable to Hernandez and drawing all reasonable inferences in their favor, a jury could determine that the K9’s fruitless sniffing of the car interior was sufficiently thorough to dissipate the probable cause to search provided by its initial alert. The K9’s handler opened all four of the SUV’s doors and the rear compartment, allowing the K9 to sniff the whole interior, and the K9 spent several minutes inside the car. After the K9 failed to alert, moreover, the K9’s handler shook the occupants’ hands, gave them a thumbs up, apologized to LE for the K9’s failure to alert and reported to the supervisor that the K9 did not hit. This court held that a reasonable jury could conclude that the K9’s failure to alert inside the car dispelled the probable cause provided by its initial alert to the exterior, and LE could therefore no longer lawfully search the car.

However, the Hernandez court applied the doctrine of qualified immunity (please see my article, “Qualified Immunity: What is it and why is everyone talking about it?” in Issue 68 of K-9 Cop Magazine for a thorough discussion of this doctrine and in last month’s Update on this website). The court stated that Bowling established that a fruitless search can dissipate probable cause and Davis established that the failure of a drug-sniffing K9 to alert at all dispels suspicion. But neither case governed the unusual circumstances of Hernandez, where the same drug-sniffing K9 first alerted and then failed to alert to a car during a subsequent search. At the time of these events, a reasonable officer would not have been on notice that the K9’s failure to alert again to the interior of the car was the kind of new information that dissipated the probable cause provided by its initial alert to the car exterior. While this court applied qualified immunity onto LE in this case, they also held that this case provides such notice for future searches (indicating that qualified immunity would not be available in the future in this type of situation).

The other situation that a K9 team might encounter is a situation akin to US v. Beal (2021) 536 F. Supp. 3d 743. Here, the K9 failed to alert to a vehicle during a free air sniff, but the court held that as long as probable cause was based on sufficient facts outside of the failure to alert, the failure to alert does not automatically create a dissipation of probable cause. See also US v. Valencia (9th Cir. 2014) 584 Fed. Appx. The Valencia court held that because “police officers had probable cause to believe that the stopped truck contained illegal drugs” before the K9 sniff of the vehicle, “[t]he negative K9 sniffs that subsequently occurred did not destroy the probable cause that already had attached.” Id. See also, US v. Edwards (8th Cir. 2018) 891 F.3d 708 where the court held that, even though the handler testified his K9 alerts 100% of the time, the fact that the K9 did not alert did not necessarily cause probable cause to dissipate. While the non-alert is relevant, LE may consider pre-existing information in making the objective determination whether there is a fair probability that evidence of a crime would be found. The evidence of criminal activity in Edwards was strong enough to establish a substantial chance that the K9 might have been mistaken or unable to perceive drugs that were within the vehicle.

The take away from Hernandez is that a secondary, interior sniff is unnecessary as the K9 had alerted on the free air around the vehicle which provided probable cause to search the entire interior of the vehicle (US v. Ross, supra) and can actually result in a dissipation of probable cause. In addition, remember that the courts will analyze your evidence of probable cause in a totality of the circumstances test so that a failure to alert may not be fatal. Your investigation must articulate why probable cause remained unchanged by the negative results of K9 sniff, particularly if you are able to articulate reasons for why your K9 did not alert (too cold, too hot, uneven surface, etc.). If the facts still rise to the level of probable cause even though the K9 did not alert, you may proceed.

INDEX OF CASES REVIEWED FROM MAY 2022

United States v. $24,000.00 (Illinois 2022) 2022 U.S. Dist. LEXIS 95037 – Traffic Stop; Currency Sniff

United States v. Noriega (8th Cir. (Iowa) 2022) 2022 U.S. App. LEXIS 14375 – Traffic Stop; Prolonged Detention

State v. Johnson (Georgia 2022) 2022 Ga. App. LEXIS 254 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Taylor (Tennessee 2021) 2022 U.S. Dist. LEXIS 91172 – Traffic Stop; Prolonged Detention

State v. Owensby (Ohio 2022) 2022-Ohio-1702 – Traffic Stop; Prolonged Detention

State v. Wescott (Delaware 2022) 2022 Del. Super. LEXIS 216 – Odor of Marijuana as Probable Cause

United States v. Sanchez-Pedraza (California 2022) 2022 U.S. Dist. LEXIS 89542 – Traffic Stop; Collective Knowledge Doctrine; Prolonged Detention

United States v. Escudero (Minnesota 2022) 2022 U.S. Dist. LEXIS 89853 – Curtilage; Leon Good Faith Exception;

United States v. McMillin (Kansas 2022) 2022 U.S. Dist. LEXIS 89942 – Traffic Stop; Prolonged Detention

State v. Beames (Utah 2022) 2022 UT App 61 – Traffic Stop; K9 Entry Into the Vehicle; Reliability Foundation

People v. Figueroa (California 2022) 2022 Cal. App. Unpub. LEXIS 3053 – Tracking/Trailing Evidence; Scent Transfer Unit

State v. Wiggins (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 812 – Traffic Stop; Odor of Marijuana as Probable Cause

State v. Stonecypher (Idaho 2022) 2022 Ida. LEXIS 45 – Traffic Stop; Alert as Probable Cause; Prolonged Detention

State v. Pauly (Nebraska 2022) 2022 Neb. App. LEXIS 101 – Traffic Stop; Prolonged Detention;

United States v. Hill (Georgia 2022) 2022 U.S. Dist. LEXIS 83759 – Traffic Stop; Odor of Marijuana as Probable Cause; Inventory Search

United States v. Clayton (Wisconsin 2022) 2022 U.S. Dist. LEXIS 80076 – Traffic Stop; Prolonged Detention; Dissipation?

McKinley v. Gualtieri (Florida 2022) 2022 Fla. App. LEXIS 3065 – K9 Bite of Civilian; Negligence

United States v. Davis (Minnesota) 2022 U.S. Dist. LEXIS 80618 – Traffic Stop; Prolonged Detention; Reliability Foundation

People v. Javier (New York 2022) 2022 N.Y. Misc. LEXIS 1747 – Traffic Stop; Odor of Marijuana as Probable Cause (post legalization)

People v. Pastrana (New York 2022) 2022 N.Y. App. Div. LEXIS 2953 – Checkpoint Stop; Odor of Marijuana as Probable Cause

United States v. Metts (Indiana 2022) 2022 U.S. Dist. LEXIS 81633 – Reliability Foundation

Commonwealth v. Baker (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 266 – Traffic Stop; Alert as Probable Cause; Prolonged Detention

CASES REVIEWED FROM MAY 2022

United States v. $24,000.00 (Illinois 2022) 2022 U.S. Dist. LEXIS 95037
Traffic Stop; Currency Sniff

Driver was stopped for lane violation on a drug corridor. Driver was nervous and shaking and told LE he had a permitted (concealed carry) handgun. The vehicle was a rental and he could not find the agreement. Driver had no criminal record. LE watched driver take a deep breath and several drinks of water. LE smelled the strong odor of air freshener. LE also noted that driver was not taking the most direct route between his stated start and end points. LE returned driver’s documents, gave him a warning and told him he was free to go. LE then asked if he could ask some questions. He asked about drugs and driver denied possession. Driver’s carotid artery was now bouncing. Consent to search the vehicle was denied. LE then told the driver he was going to run his K9 around the vehicle and driver said, “Okay.”

Driver refused to exit the vehicle. LE then reached inside the vehicle and unlocked the door and retrieved the firearm from the driver’s door panel. LE secured the gun in his patrol car and after a second request, driver got out.

The K9 alerted to the vehicle. There was a large bundle of cash in a plastic bag bundled with rubber bands. Nothing else was found in the vehicle. Later, in a controlled setting, the K9 again alerted on the cash. The rental agency said the car was rented for a total of 17 days and was driven during that time 4,673 miles.

The government moved to forfeit the money as proceeds of drug trafficking. Driver moved to dismiss the complaint to forfeit the money. The government relied on the two alerts by the K9, the implausible story told by the driver, strong scent of air freshener, the nervousness of driver and the large amount of bundled money.

The appellate court held that here, the government alleged facts sufficient to support a reasonable belief that the $24,000 found in driver’s vehicle was—or was intended to be—furnished by a person in exchange for a controlled substance or proceeds traceable to such an exchange. Accepting the alleged facts as true, driver was pulled over on Interstate 70, which was an illogical route given his starting point and his destination. He was carrying a firearm, he was breathing heavily and shaking, his carotid artery was visibly pounding, and there was a strong odor of air freshener coming from the vehicle. The K9 alerted to the odor of narcotics outside the vehicle, and LE found a large sum of money in rubber bands in the center console. The K9 later alerted again to the odor of narcotics on the currency itself. As for the vehicle, it was a rental car on which driver accumulated thousands of miles over a span of a few weeks. This was enough to support a reasonable inference that the currency had a substantial connection to a criminal offense—drug trafficking.

Note: When a currency sniff by a properly trained K9 results in a positive alert, this currency can be seized for forfeiture (see your state for specific rules for seizure). Here, the court relied on more than the two alerts by the K9; this is true in most jurisdictions (a positive alert is only one part of the proof that the government needs to show in these types of cases).

United States v. Noriega (8th Cir. (Iowa) 2022) 2022 U.S. App. LEXIS 14375
Traffic Stop; Prolonged Detention

Noriega was a courier for a large drug trafficking organization. Noriega was stopped in Colorado for a lane violation. Upon approach, LE smelled a strong perfume odor. As LE gathered appropriate documentation from Noriega, LE noticed that Noriega’s hand was “trembling” and his face was “twitching.” Noriega had a Nevada driver’s license and license plate and a Las Vegas, Nevada address. Officer Miller testified that Las Vegas is a drug trafficking hub.

Noriega continued to be overly nervous as he was asked about his travel plans and looked uncomfortable and continually attempted to change the subject.

Noriega’s documents were in order so LE returned them. At that point the perfume odor had dissipated. LE told Noriega he was good to go. After that, Noriega put the car in gear, but before he drove off, LE asked if he had drugs in the car. Noriega said no. LE asked to search the car. Noriega said he thought he was free to go. There was a bit of back and forth with Noriega asking if he had to consent, and handler got K9 out to do a free air sniff (two officers on scene). Upon seeing the K9, Noriega consented to the free air sniff. Noriega was removed from the vehicle (with shaking legs) and the K9 alerted on the vehicle. LE asked Noriega at that point if he could search and this time, Noriega said yes.

Noriega challenged the search on the grounds of prolonged detention. The court held that the stop was not unreasonably prolonged because LE had reasonable suspicion of drug trafficking, based LE’s observations at the traffic stop. Noriega was traveling from Las Vegas, Nevada, a location known to LE as a common origin point for narcotics. Additionally, Noriega’s demeanor was suspicious; he was visibly “shaking,” “twitching,” and “trembling,” his mouth was noticeably dry, he appeared increasingly uncomfortable when pressed about his travel plans, and he attempted to change the topic of conversation, directing LE away from questions regarding his destination. LE also explained that, because a strong fragrance was coming from Noriega’s vehicle at the outset of the stop but dissipated over the stop’s duration, he suspected that Noriega had sprayed a substance to mask the scent of narcotics, a tactic that, in his experience, is commonly used by narcotics traffickers to conceal their narcotics.

The appellate court viewed these facts cumulatively and based on LE’s extensive experience and training, they found that he had reasonable suspicion to extend the stop of Noriega. Therefore, there was no violation when LE initiated and executed the K9 sniff.

Note: This case is interesting because it seems there was a K9 on scene that could have been deployed while LE was conducting activities related to the traffic stop. This would have eliminated the prolonged detention argument completely. In addition, the government could have argued that the on-going drug investigation was part of the reasonable suspicion for the sniff, if LE had been informed of the investigation (collective knowledge doctrine). Here, the appellate court was pretty convinced that a sketchy story, perfume scent, and extreme nervousness was enough to extend the stop. Other courts have granted motions to suppress on such fact patterns. The better practice here would have been to have the K9 sniff during the traffic investigation.

State v. Johnson (Georgia 2022) 2022 Ga. App. LEXIS 254
Traffic Stop; Odor of Marijuana as Probable Cause

Johnson stopped at two red lights over the limit line so LE stopped him. LE immediately smelled raw marijuana and saw Johnson stuffing a plastic baggie in his pocket. Johnson was ordered out and the car was searched. Marijuana and a gun were found.

The appellate court first found that the traffic stop was supported by his observations of Johnson stopping beyond the limit lines in violation of law. The court then went on to talk about the probable cause to search. The court remanded the case to the trial court because the lower court erroneously held that the odor of marijuana is not sufficient in itself to be probable cause for an automobile search (in Georgia, there were cases that held that the odor of marijuana was sufficient for probable cause). In the remand, the appellate court told the lower court that it had to make findings on whether LE had the requisite experience to determine if the odor he smelled was marijuana as well as the credibility of his testimony and then make a determination of whether the search was lawful based on the odor of marijuana.

Note: We are seeing more and more as marijuana is decriminalized/legalized that the odor of marijuana is not enough for probable cause. Here, Georgia at this time had not legalized or decriminalized marijuana, so the smell was sufficient for probable cause.

United States v. Taylor (Tennessee 2021) 2022 U.S. Dist. LEXIS 91172
Traffic Stop; Prolonged Detention

Traffic stop for speeding. The appellate court immediately dismissed the claim that LE did not have a reasonable suspicion of speeding. The court then moved on to the claimed prolonged detention. The facts of the case showed that Taylor’s movements within the car during the stop, the presence of multiple air fresheners, the seeming inconsistency in his direction and location of travel, and his prior drug conviction caused LE to suspect criminal activity. Based upon these factors, LE decided to call for a drug K9. The dash cam corroborated this testimony by LE. The court found that these factors allowed for a 6 minute delay for the K9 to arrived and perform a free air sniff.

Note: The court really emphasized Taylor’s squirrely-ness regarding his movements, including the fact that he disappeared from view twice and appeared to be trying to hide documents when asked for his insurance, etc. This, of course , heightened the danger of the situation to LE as well as being indicative of drug trafficking (or other crime other than a traffic violation). Make sure you document everything that happened in your report so that if you are called to testify to this detail, you will have your report to refresh your memory about the details of your investigation.

State v. Owensby (Ohio 2022) 2022-Ohio-1702
Traffic Stop; Prolonged Detention

LE had information from an reliable informant that Owensby was in possession of a large amount of drugs and was leaving an apartment complex. Shortly after that call, LE saw Owensby as a passenger in a Kia. Carmody was the driver and Owensby was a passenger. As LE followed the Kia, they ran the plate and discovered that the Kia belonged to Carmody, who had a suspended license and a warrant. In addition, LE had information that Owensby earlier that day brandished a hand gun and threatened Carmody. After the stop, Carmody was arrested on her warrant and Owensby’s information was run.

Based on this information, LE performed a traffic stop. Owensby was taken out of the car and Terry frisked. He had a large wad of cash in his pocket. LE did not remove it but Owensby claimed it was his stimulus money. LE then deployed a K9 and it alerted to the front passenger seat twice. During the sniff, Owensby was excessively nervous. After a thorough search of the car and Owensby, and only finding a small amount of marijuana, LE believed that the drugs were hidden inside Owensby’s body. LE then slid his hand between his thighs and found a lump concealed in the fly of Owensby’s pants. This lump contained fentanyl and methamphetamine.

The appellate court took each stage of the investigation and made a determination. The original stop was not challenged so that was not an issue. The Terry frisk was justified on several reasons, including the CI information about drug traffickingf and the earlier brandishing. The court then held that Owensby was lawfully detained at the time of the K9 sniff because LE had reasonable suspicion that Owensby was engaged in drug trafficking. In addition, since this sniff took place while Owenby’s information was being checked, the sniff was not a search.

The court then went on to discuss the final search where LE put his hands down Owensby’s pants. The court held first that an alert to a vehicle does not, in itself, allow for a search of the person. However, once LE found the marijuana which Owensby claimed, LE then had the probable cause to search his person. This, then, along with the large amount of cash and Owensby’s excessive nervousness, supported the more intrusive search of Owensby’s body. In addition, there was a possibility of the evidence being lost, as narcotics are easily and quickly hidden or destroyed, further justifying the search of Owensby’s body.

The court also held that even though another officer gave Owensby a “jail type” search (and missed the drugs in his crotch), the original officer was concerned that the search missed evidence based on the fact that the CI said the drugs were other than marijuana. The court held this was reasonable.

Note: This is an unusual type of search in the field, but the court used all the facts to make a determination, based on the totality of the circumstances, that LE had the appropriate reasonable suspicion to extend the traffic violation investigation and that LE had probable cause to search the vehicle and then Owensby. Courts will generally want more evidence when a intrusive search such as this one are conducted. Again, make sure your report reflects the details of why you did what you did so that you can refresh your memory with it down the road.

State v. Wescott (Delaware 2022) 2022 Del. Super. LEXIS 216
Odor of Marijuana as Probable Cause

On a motion for reargument, the court stated that its decision was based in part on the Delaware statutory declaration that nothing in the law decriminalizing possession of less than one ounce of marijuana “shall be construed to repeal or modify any law or procedure regarding search or seizure.”

In addition, the court stated that the motion for reargument was untimely and not supported by the law. However, the court stated that if it were to address the substance of the Motion for Reargument, its decision would still stand. Wescott asserted that, based on federal law, the State would have to show that it was able to distinguish the THC concentration of the alleged “shake” as between marijuana and hemp. Wescott was essentially trying to posit an innocent explanation for small leaves consistent with marijuana. However, there is no presumption of innocence when determining probable cause. The “possibility that there may be a hypothetically innocent explanation for each of several facts revealed during the course of an investigation does not preclude the determination that probable cause exists.” The possibility that the small leaves in the vehicle were hemp rather than marijuana does not vitiate probable cause in this case. There is nothing to suggest the small leaves were not marijuana. Moreover, the officer’s training and experience, as well as a positive K-9 alert, certainly suggest that the small leaves were marijuana.

Note: The language in the Delaware statute is the opposite in California. California’s law states specifically that a “legal” amount of marijuana cannot supply probable cause for arrest or search. Other states have leaned in the direction of California. Be sure to check with your local prosecutor regarding what is allowed in your jurisdiction.

United States v. Sanchez-Pedraza (California 2022) 2022 U.S. Dist. LEXIS 89542
Traffic Stop; Collective Knowledge Doctrine; Prolonged Detention

LE was surveilling a house during a long term drug trafficking investigation and had uniformed police on stand by to stop any vehicle leaving the residence on an observed traffic violation. Sanchez-Pedraza (subject) was one of the people stopped because he was driving a vehicle where a large black plastic bag ended up. He was speeding and also failed to signal a lane change. It was believed that the bag contained narcotics. A K9 team was called to the scene once LE had subject’s license and registration. K9 team arrived and alerted. 20 kilos of methamphetamine was found in the bag. By design, LE did not tell subject about the drug investigation as LE wanted subject to think he was the victim of bad luck and not connect the stop to the ongoing drug trafficking.

Subject first complained that he was not told the actual reason for the stop and therefore the stop was invalid. However, the appellate court applied the collective knowledge doctrine (the collective knowledge doctrine applies where an officer (or team of officers), with direct personal knowledge of all the facts necessary to give rise to reasonable suspicion or probable cause, directs or requests that another officer, not previously involved in the investigation, conduct a stop, search, or arrest.) The collective knowledge is imputed or considered transferred to the traffic officer. This doctrine is well established and the court found the stop to be lawful under that doctrine. It also recognized the investigatory benefit of a “wall stop,” that having to disclose the full investigation to a small player could and would have detrimental affects on the on-going investigation.

Subject then complained that the stop was unlawfully prolonged by calling for a K9 team as this was outside the investigation of the traffic offenses. However, the court held that the stop was justified by probable cause that LE and the surveillance team had developed while observing the suspected drug transaction in the hour before the stop, and the K9 unit was brought to determine if the vehicle in fact contained drugs. The stop was thus not prolonged by use of the K9 unit.

Note: Nothing really new here, but remember that the ongoing investigation can provide the reasonable suspicion for contacting and deploying a K9 team. Here, there was no discussion of when the K9 sniff took place in relation to the traffic investigation, but because there was plenty of reasonable suspicion from the ongoing investigation, the court found there was no prolonged detention without doing a specific analysis of this issue.

United States v. Escudero (Minnesota 2022) 2022 U.S. Dist. LEXIS 89853
Curtilage; Leon Good Faith Exception;

During a drug trafficking investigation, LE obtained a search warrant that authorized an examination of the seams of the door and exterior doorknob of a specific apartment for evidence of drug activity. LE also obtained a search warrant for the examination of the door seams of a specific studio within an event center.  When deployed, the K9 alerted to both door seam locations. LE then obtained rollover warrants based on the investigation and the K9 alerts. The apartment and the studio were places where the target, Escudero, spent much time or frequently visited. The investigation also included controlled buys.

Escudero complained that there was not sufficient probable cause in the warrants to have been issued (when a search warrant is in play, the burden is on the defense to show it was improper). In the first “sniff” warrant, the court found that LE had seen Escudero make multiple short stops in his car and LE made a controlled purchase of cocaine from Escudero’s runner who then went immediately to Escudero for a short time, indicating he brought the money to Escudero. Escudero also had a conviction for trafficking in his past. The court found this supplied probable cause for sniffing the seams of Escudero’s apartment. The court went on to find that even if there wasn’t enough probable cause, LE was entitled to the Leon good faith exception because the one error was minimal (Escudero’s criminal history was listed as federal but it was a state conviction and sentence). The mistake was not intentional or the result of reckless disregard. The fact that the investigating officer was methodical about his investigation, seeking a door seam warrant prior to seeking a warrant for the apartment impressed the court that this was an officer who was doing a very thorough job.

Moving to the studio door seam warrant, the court held that there was sufficient probable cause as well. Escudero often made frequent, short-term stops at the studio: an informant told LE that Escudero might have rented a studio there; surveilling LE saw Escudero at the event center on numerous occasions and the event center confirmed that Escudero rented a studio with no other occupants. The court came to the same conclusion on this warrant as well.

I haven’t reviewed the other warrants in this case here, but suffice it to say that the warrants for the interiors of the apartment and studio were also upheld.

Note: I had never really thought of a “door seam” warrant but it’s a great idea. Here, there was probably enough to get into the apartment and studio without a door seam sniff, but by doing this in stages and getting confirmation via the alert, this was an easy case for the court and Escudero’s defense attorney was unable to come up with anything that would support a different outcome.

United States v. McMillin (Kansas 2022) 2022 U.S. Dist. LEXIS 89942
Traffic Stop; Prolonged Detention

McMillin stopped by handler for speeding after recognizing the vehicle as one that had a temporary but expired license plate. Prior to initiating the stop, handler called for back up. McMillin was the driver and could not produce insurance or registration. Handler decided to write McMillin up for no insurance or registration. During this contact, back up arrived. Handler filled back up in and asked for back up to take over the citations while handler had K9 perform a sniff. Handler went back to the vehicle to obtain its VIN and radio’d it in to make sure the vehicle was not stolen. At that point, handler told both occupants to roll up their windows, turn off the vehicle and step out. He directed them to stand near the back up patrol car. As this was happening, dispatch came back with clearance on the VIN. This was the last information that back up needed to complete the citations.

K9 was deployed and alerted almost immediately to the vehicle (within 3 minutes of back up starting the citations). A search revealed a firearm along with narcotics and paraphernalia. The investigation then became a drug investigation and the citations were never finished.

McMillin complained that the stop was prolonged to include the K9 sniff of the vehicle. The court pointed out that once the officers had all the information to proceed on the citations, the K9 team performed the sniff and alerted before the citations were finished; in other words, concurrently to the traffic investigation. The K9 alerted almost immediately and back up officer testified he would have needed more time to finish the citations (about 7-8 minutes). The traffic investigation, then, was still four minutes out from being completed.

McMillin also complained that the traffic investigation was prolonged because the initial conversation between handler and back up delayed the traffic stop. Although handler did spend roughly 24 seconds explaining to back up what citations were needed, the court noted that conversation occurred before dispatch had returned all the information needed for back up to complete the citations and release McMillin.

McMillin argued that back up had to divert his attention from his citation-writing efforts to monitor McMillin and his passenger while the pair was standing outside his vehicle. While back up testified that he did keep an eye on them, he also testified they stood in a location where watching them was easy and did not require him to stop writing the citations. More importantly, he testified that, during an ordinary, single-officer traffic stop, the citation-writing officer must always keep an eye on vehicle occupants—regardless of whether they are in or out of their car. Thus, any distraction caused by watching McMillin did not cause back up to take longer with the citations than would be ordinary for him.

The court also noted that in fact, video footage of the stop showed handler and back up working quickly and with great focus at all times. There s no indication in the footage or the testimony that back up wasted any time or encountered any delay in completing his tasks. And handler and back up’s conduct in this case was consistent with both standard procedure and standard timelines for ordinary traffic stops in their jurisdiction.

McMillin’s final argument was that the entire traffic stop was pretextual—that because of handler’s previous experiences with McMillin, he had always intended to investigate for potential drug crimes during the stop. And, indeed, handler testified that he quickly formed the intent to conduct a K9 sniff test without any articulable suspicion and requested back-up specifically so that his K9 activities would not delay the stop. But, the court held, Fourth Amendment precedent does not permit an examination of handler’s subjective reasons for the stop, good or ill. Instead, the only question is whether the circumstances gave rise to an objectively reasonable suspicion of a traffic crime—which McMillin admitted that they did—and whether that stop was conducted without impermissible extension for nontraffic activities—which the evidence shows that it was.

Note: This is a pretty textbook case by a handler and back up officer who both were able to articulate exactly what they were doing and why. It is also illustrative of the microscopic detail the court will be asked to address; such as the 24 seconds it took the handler to bring back up to speed and the issue that back up had to stop his citation writing to guard the occupants. The court easily dealt with these issues because they all occurred prior to the citations being completed. However, these types of issues will continue to crop up.

State v. Beames (Utah 2022) 2022 UT App 61
Traffic Stop; K9 Entry Into the Vehicle; Reliability Foundation

Beames and her boyfriend were in a Walmart parking lot in a place which was rather far from the entrance. LE contacted them and ran their licenses. LE left and then was informed that both Beames and her boyfriend were suspended. LE returned and after getting further information that boyfriend had been trespassed from Walmart “worldwide”, LE decided to investigate and again initiated contact with Beames and Boyfriend. At some point, other LE arrived on the scene.

LE told Beames to stay in the vehicle and asked boyfriend to exit. When he did, Beames did as well. The doors probably remained open although the body cam footage does not answer that issue. LE asked K9 team to sniff the car. However, although leashed, the K9 almost immediately and seemingly before he made any sort of alert or indication, jumped in the car. Although Handler did not “tell him to do it,” K9 went “right on in there and he starts fiercely sniffing” and then exited the car on the passenger side. K9 was in the vehicle this first time for a total of only seven seconds. Handler, standing near the driver’s side door where the K9 had entered, then ordered K9 to “come here,” and K9 returned to the inside of the car through the passenger’s side door, whereupon Handler shut the driver’s door. Handler then moved around the car to the passenger’s side and stood by the open door looking into the car.

K9, who was in the car for nearly a full minute this time, then indicated the possible presence of drugs, and Handler searched and found contraband.

The court first considered whether there was probable cause even before K9 initially entered the car that would have allowed K9’s entry. Holding that there was no probable cause at the outset, the court then considered whether K9’s actions while in the car the first time—given that it is fairly obvious K9’s first entry was instinctual and not directed by Handler—provided probable cause for K9 to re-enter the car. Concluding that, based on the record before us, K9’s actions while in the car the first time do not appear to have provided probable cause, the court then considered whether K9 instinctually re-entered the car or was directed to re-enter by Handler. The court held that K9 did not instinctually re-enter the car on the occasion when he indicated the presence of drugs, and on this basis alone, there is a reasonable probability that the search was unconstitutional.

The record established that LE investigated only because both occupants of the car had invalid driver licenses and boyfriend might have been trespassing at Walmart. This did not supply probable cause to search the car. Additionally, the record contained no indication that K9’s initial behavior outside the car could have supplied probable cause for LE to search the inside of the car. When K9 was given a command to search the exterior perimeter, he did not alert to or indicate the presence of drugs before he entered the car for the first time. Rather, he almost immediately jumped into the vehicle on his own instinct. Because there was no evidence in the record that K9 gave any alert behavior either prior to jumping in the vehicle or during his first stay in the vehicle, the second entry, which was directed by handler was an unconstitutional search because there was no probable cause at the time the K9 entered at the handler’s direction.

Based on these findings, the appellate court overturned the conviction as the evidence used for the convictions would not have been admissible had a motion to suppress be properly filed in the trial court.

Note: It is unknown why the handler ordered the K9 back through the car to his position. Unfortunately, because he did this rather than directing the K9 to him around the car, and then shut the door blocking his exit, this looks like exactly what the ruling was: an unconstitutional search by handler and K9. No way to survive suppression on this one. The courts are very forgiving when there is an inadvertent entry by a K9, even if the handler isn’t paying good attention. But once handler directs the K9 into the vehicle, the handler better have probable cause, because otherwise, the evidence will by inadmissible.

People v. Figueroa (California 2022) 2022 Cal. App. Unpub. LEXIS 3053
Tracking/Trailing Evidence; Scent Transfer Unit

In a murder case, handler used a scent pad collected from the nine-millimeter cartridge found near victim’s body and had his K-9 trailed that scent through the East Los Angeles Sheriff’s Station. The K9 led his handler through the station and to the room where Figueroa (the murderer) sat and alerted handler that he had reached the end of the trail. The appellate court held that since Figueroa did not object to the scent transfer unit at trial which therefore meant he was blocked from raising that argument on appeal (Kelly). However, the appellate court did address the reliability foundation of the K9. The handler testified at the trial court level and showed 5 or 6 certifications for the K9 in “man trailing.” Handler said K9 was trained not to move if he didn’t smell the scent he was asked to trail (negative trail) and that K9 had a 100% success rate for negative trails and never identified the wrong person. Handler also testified about how he used the nine-millimeter cartridge to create the scent pad which is what K9 was asked to trail. An officer who watched this process also testified that the proper procedure was used.

The prevailing case in California on admitting K9 scent evidence is People v. Jackson in 2016. The Jackson court concluded that, in order for K9 scent trailing evidence to be admitted, the proponent must demonstrate by a preponderance of the evidence four foundational factors: (1) the K9’s handler was qualified by training and experience to use the K9; (2) the K9 was adequately trained in tracking humans; (3) the K9 had been found reliable in tracking humans; and, (4) the K9 was placed on the track where circumstances indicated the guilty party to have been.

The appellate court then held that there was substantial evidence that supported the Jackson factors for admissibility.  With respect to the first factor, substantial evidence showed handler was qualified by training and experience to use K9 as a trailing dog. He began training K9 when K9 was two months old, and the pair were certified in tracking and trailing in 2012.

With respect to the second and third factors, K9 was adequately trained in trailing humans and demonstrated reliability in doing so. He was first certified in trailing when he was two years old and held an additional five or six certifications for man trailing. Handler regularly trained K9, including in negative trails, for which K9 had a 100 percent success rate. K9 never identified the wrong person when doing a scent identification. Handler also recorded K9’s training, tracking, and trailing in an 89-page log that spanned November 2010 to August 2017.

With respect to the fourth factor, substantial evidence established that K9 was placed on the track where circumstances indicated the guilty party to have been. Given the dirt patterns near victim’s knees and toes, he was shot at the location where he was found. The scent pad was taken from a bullet shell casing that was found just a few feet from victim’s body. A reasonable inference exists that the person who shot victim touched that bullet casing.

Having substantial evidence to support each of the Jackson factors, the trial court did not abuse its discretion in admitting the dog scent evidence.

Note: The appellate court, while they ruled that Figueroa had forfeited the Kelly issue on the scent transfer unit, stated that it was doubtful whether the scent transfer unit should still be considered a novel method for gathering scents for K9 trailing (in other words, it is a generally accepted scientific practice based on the many cases that have addressed it in the past). However, be prepared to address this issue through your local prosecutor and flag it for them. Case law is on our side on this, but it is such a rare occurrence that your prosecutor may not know about it. Here, there were two issues: 1) Is the scent transfer unit scientifically accepted or does it need to be ? and 2) was the K9 reliably trained and properly deployed? In this case, the court said the first issue was forfeited and the second issue was proved by substantial evidence in the case.

State v. Wiggins (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 812
Traffic Stop; Odor of Marijuana as Probable Cause

Wiggins was a passenger in a vehicle stopped by LE for speeding and lane violations. When the window did not work, the driver opened the door to speak with LE. LE smelled a strong odor of marijuana coming from the vehicle. While the occupants first denied the smell and possession, Wiggins then produced a small amount of marijuana. LE believed there was more marijuana in the vehicle based on how strong the smell was. All occupants removed from the vehicle and Terry frisked. The vehicle was searched and additional small amounts of marijuana and a gun were found.

Wiggins first argued the court erred by denying his motion to suppress the handgun found in his vehicle. He argued any probable cause that existed to search the vehicle based on LE’s detection of the smell of raw marijuana was no longer extant after he turned over the small bag of marijuana. Wiggins only challenged the search of the vehicle and did not challenge the reason for the traffic stop. Wiggins relied on a state case, State v. Patino, where the court held that the presence of a small amount of marijuana, consistent with personal use, does not provide LE with probable cause to believe that larger amounts of marijuana or other contraband are being transported. However, this appellate court held that Wiggins could not rely on Patino because the state courts had also ruled that the smell of marijuana itself constitutes probable cause that a criminal offense has been committed and that additional contraband might be present (State v. Walker). Here, probable cause to search the vehicle persisted after Wiggins turned over the bag of marijuana; LE testified a strong odor of marijuana continued emanating from the vehicle after Wiggins handed the small amount of marijuana to LE.

The court went on to hold that probable cause to continue the search of the vehicle was supported by the discovery of additional marijuana as the search progressed. As the search progressed, more marijuana was found in the vehicle which provided on-going probable cause that more marijuana could be in the vehicle. Since the gun was in the glove box which was right in front of where Wiggins was sitting and within the immediate vicinity of where LE found additional marijuana, looking in the glove box was allowed.

Note: At the time of this case, recreational marijuana was still illegal in New Jersey. In addition, the fact that LE could specifically testify that the odor he smelled indicated additional marijuana was crucial. Now that marijuana has been legalized this year (2022), this area of the law may be changing. New Jersey folks, keep an eye out. And if you have questions or concerns, please contact me. and/or your local prosecutor.

State v. Stonecypher (Idaho 2022) 2022 Ida. LEXIS 45
Traffic Stop; Alert as Probable Cause; Prolonged Detention

Traffic stop on Stonecypher for equipment and registration violations. LE noticed that all three occupants showed signs of recent drug use and also spotted what LE believed to be items associated with illegal drug use. While waiting for results of the warrant checks on the occupants, LE asked about their travel and they volunteered they had been with a person with active COVID which LE believed was designed to dissuade him from detaining them further. While LE was asking about drug use and possession, the warrant checks came back clear. All occupants denied use/possession of drugs. Eventually a K9 arrived and alerted. Contraband was discovered.

On appeal, the parties agreed that the mission of the traffic stop was completed when the warrant check came back clear (see note below). The only issue based on the filings of the parties was whether LE had additional reasonable suspicion to hold the vehicle to wait for a K9 team to arrive and deploy.

The facts supporting reasonable suspicion of drug activity were numerous. While Stonecypher was pulling over to the side of the road, LE noticed furtive “movement all over the car.” Upon making contact with the occupants of the pickup, all three displayed signs of recent drug use. Based on these signs, LE testified that he believed all three occupants were likely under the influence of illegal drugs.

LE also observed a torch lighter in the ashtray of the pickup, which was next to a handkerchief with something rolled up inside. According to LE, torch lighters are very commonly associated with illegal drug use. Additionally, a high-end walkie-talkie was clipped to the visor on the passenger side of the cab. LE testified “[t]hat’s a thing I see commonly with drug traffickers. If they have a pace car or . . . follow vehicle . . . they’ll use it to signal to the other driver” or “to call in a drop site for a drug deal.”

Finally, LE found the occupants’ explanation of their travel plans to be suspicious. An occupant told LE that his uncle was sick with COVID-19, that they had traveled from Montana to California to visit him, and that Stonecypher was a friend of his uncle who offered to drive the two back to Montana. This raised LE’s suspicion for two reasons. First, LE testified that since the COVID-19 pandemic began, he had observed a pattern among drug traffickers of “telling me they were just tested for COVID-19 or . . . just saw someone with COVID, essentially to try to create that distance to keep me from pursuing the traffic stop any further.” Second, occupant did not seem to know anything about his uncle’s prognosis, and LE thought it “odd to go all the way out there but not find out if he was gonna make it or not” before returning.

Taken together, the court held, these facts provided LE with more than a “mere hunch” of ongoing illegal activity among the occupants of the vehicle. Therefore, the continued detention of Stonecypher was supported by reasonable suspicion and his Fourth Amendment rights were not violated by extending the stop to investigate further.

Note: The parties agreed that the traffic stop was completed when the warrant check came back clear, even there was no discussion of whether LE intended or began writing citations. However, in this instance, it didn’t really matter since the court held that there were enough signs of drug use/possession that the investigation had expanded to include drug trafficking.

State v. Pauly (Nebraska 2022) 2022 Neb. App. LEXIS 101
Traffic Stop; Prolonged Detention

LE stopped a vehicle with Texas plates because the driver was speeding and following too closely. The driver was Pauly. He presented his Iowa driver’s license and his rental car agreement. During the time it took to issue Pauly a warning, LE became suspicious that Pauly was involved in criminal activity. After the traffic stop was complete and the warning had been issued, Pauly continued to speak with LE, but he denied consent to search the vehicle. LE therefore requested a K9 team to come to the scene. The K9 completed an exterior sniff of Pauly’s vehicle and alerted and indicated to the odor of narcotics coming from the vehicle. A subsequent search of the vehicle revealed 27.8 grams of methamphetamine and three glass pipes.

After conviction, Pauly claimed that his trial counsel was ineffective because, among other things, counsel failed to file a motion to suppress evidence gathered at the traffic stop because the stop was improper and the stop was unduly prolonged by the wait for the K9 team. The court concluded quickly that the stop was proper because of the observed traffic violations. The court then addressed the prolonged detention argument. LE admitted that the traffic stop was complete at the issuance of a warning. However, LE had additional reasonable suspicion based on his findings during the traffic stop.

LE said that his suspicions were aroused because the rental agreement that Pauly showed him indicated that he picked the vehicle up in Arizona and was to return it in Arizona, which was not consistent with the travel plans he related to LE of flying to Las Vegas to visit his sister and then driving home to Iowa in a rental car. Further, Pauly could not explain to the officer why he was driving back home, rather than flying home, which LE noted was more expensive and took longer. LE discovered that Pauly was a convicted felon and had a criminal history including a conviction for possession with intent to deliver. On the front passenger seat of Pauly’s vehicle, LE observed a notebook that appeared to be a handwritten “owe note ledger,” which LE opined was common for individuals who move large quantities of narcotics. Finally, LE observed that Pauly was extremely nervous while speaking with him and that his nervousness increased throughout the duration of the traffic stop and peaked when asked whether he had any illegal items in the vehicle. LE opined, based on his training and experience, that nervousness among the “law abiding general motoring public” declines throughout a traffic stop where a warning is being issued. The appellate court concluded that these observations were sufficient to provide additional reasonable suspicion to expand the traffic investigation to encompass a drug trafficking investigation. Finally, the alert by the K9 provided probable cause to search the vehicle. Since this motion would have been denied in the trial court, it would have been denied, so Pauly’s counsel was not ineffective. Conviction affirmed.

Note: Nothing really new here, but reinforcement of the need to be specific and detailed on what you notice to be able to articulate what your investigation showed that gave you additional probable cause.

United States v. Hill (Georgia 2022) 2022 U.S. Dist. LEXIS 83759
Traffic Stop; Odor of Marijuana as Probable Cause; Inventory Search

LE was investigating a local gang, to which Hill had ties. Hill had a federal warrant pending, so the local LE involved in the gang investigation wanted to locate Hill to learn where his residence was. At some point later, LE spotted Hill’s Durango. LE in marked units were asked to stop Hill for a traffic violation (wall stop). Meanwhile, LE in unmarked cars were following him and saw Hill commit several traffic violations. Hill was stopped by another uniform LE based on what the other uniformed officer saw. Another marked unit pulled in front of Hill to prevent him from fleeing.

LE smelled burnt marijuana coming from the vehicle as he approached. Hill was asked out of the vehicle and Hill was searched and asked about his residence. Hill was in possession of a cell phone. When asked, he said that there were two burner phones in the Durango. Another officer searched the vehicle and located promethazine and two “burner” cell phones. Both were seized. LE claimed this was an inventory search based on agency policy.

Hill complained that the traffic stop was pretextual. The court agreed but held that Whren v. United States held that a traffic stop is constitutional if it is based upon probable cause that a traffic violation occurred, even if law enforcement’s real motivation is suspicion of other criminal activity. As a result, the subjective reasons that any of the officers had to stop a suspect are irrelevant, so long as they had probable cause to support the articulated traffic violations. Here, the court held, the many traffic violations observed by LE were sufficient to justify the traffic stop.

Hill then argued that the phones should be suppressed because the traffic stop was conducted in an “extraordinary manner” and thus violated the 4th Amendment. Hill pointed out that the traffic stop occurred late in the evening; it involved four law enforcement officers in four separate vehicles; Handler had a K9 present in his patrol car; the officers blocked Hill’s path forward, and “pinned him in” so he was unable to drive away; and LE questioned him “unlawfully” prior to his arrest.

Whren had recognized that if there were actions by LE that were unusually harmful to an individual’s privacy or even physical interests, probable cause to believe the law has been broken outbalances private interest in avoiding police contact. However, Whren identified only four types of cases involving “extreme” measures that trigger a balancing analysis to determine the reasonableness and constitutionality of a search: seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, and physical penetration of the body. None of these situations were present for Hill. Therefore, the phone seized from his person was admissible.

The court then moved onto the phones that were found in the Durango. He complained that LE did not have probable cause to search the Durango. The court held that there is no dispute that the Durango was operational and, therefore, readily mobile, as Hill was observed driving it on public streets (so the automobile exception applied). Likewise, probable cause existed to believe that the vehicle contained contraband or evidence of a crime because LE smelled the odor of burnt marijuana when he encountered Hill. Although the testimony was unclear, the court decided that the burner phones were taken in a probable cause search after the location of the promethazine and not in an inventory search. Still, the court found that the search of the Durango was lawful.

Note: Interesting that Hill jumped on the language of Whren where it talks about LE behaving in an extraordinary manner. It didn’t work here, and the court’s analysis was was helpful by outlining the four situations that Whren contemplated when speaking about extraordinary measures. Hill’s situation didn’t come close. In addition, there was some talk amongst local LE that a federal warrant was coming down, but it is unclear if at the time of the traffic stop, there was an active warrant. If there was an active warrant, then the search would have been lawful as an inventory search from the beginning because Hill would have been under arrest upon initial contact. However, LE prevailed here without that.

United States v. Clayton (Wisconsin 2022) 2022 U.S. Dist. LEXIS 80076
Traffic Stop; Prolonged Detention; Dissipation?

A task force LE involved in a drug trafficking and money laundering investigation asked a uniform officer to stop Clayton if he committed any traffic violations.  Uniform did so and questioned Clayton about drugs and guns. Clayton while a K9 team was summoned. The K9 failed to alert to the vehicle, so LE decided to impound the car based on illegal window tint. During an inventory search, $149K was found in cash.

Clayton did not challenge the actual stop for the traffic violations. But he did claim that the traffic stop was unduly prolonged by waiting for the K9 team (the entire encounter from stop to towing to dropping Clayton off at a gas station was 75 minutes). The government did not argue any authority justifying the search other than it was an inventory search. The court held that the search was not in compliance with policy and since there was no probable cause that would support a search, the motion to suppress is granted.

Note: It appeared that the failure of the K9 to alert was just mentioned and the court moved on. There was no argument for dissipation, possibly because Clayton was the money man and they did not expect a large amount of drugs being found in Clayton’s vehicle. It seemed the court believed that the inventory search was an excuse for the search, but not legal justification.

Here, the K9 failed to alert. Any time a K9 fails to alert, you may run into that dissipation issue. Please see my article in this month’s Update.

McKinley v. Gualtieri (Florida 2022) 2022 Fla. App. LEXIS 3065
K9 Bite of Civilian; Negligence

In Florida, there is a dog bite statute, a common-law tort approach to dog bite cases prior to the actual dog bit statute and a statute that conveys sovereign immunity in tort actions (government acting in accordance with their duties). The court’s analysis indicated that the dog bite statute does not apply because the Tort Claims act applies.

The court first addressed whether the handler was negligent under the common law (tort) principles. The individual suing must show: (1) the existence of a legal duty owed by the defendant to others, (2) breach of that duty by the defendant, (3) injury to the plaintiff proximately caused by the defendant’s breach, and (4) actual loss or damages resulting from the injury.

McKinley (the bitee) claimed the below:

• that the K-9 in question was aggressive and had a “propensity to attack or bite without cause”;

• that the Sheriff owned and trained the K-9;

• that the Sheriff and the Deputy handling the K-9 knew or should have known of the K-9’s aggressive tendencies;

• that the Sheriff had a duty to exercise reasonable care in handling, controlling, and supervising the K-9;

• that the Deputy who was patrolling the venue with the K-9 was acting in the scope and employment of his duties with the Pinellas County Sheriff’s office;

• that the Sheriff created a foreseeable zone of risk “by placing bystanders in close proximity” to the K-9;

• that “McKinley was not warned, advised, or aware of the dangerous and vicious nature of” the K-9;

• that McKinley unknowingly entered into the zone of risk created by the Sheriff;

• that when McKinley entered the zone of risk, the K-9 “attacked [McKinley], without warning or provocation, biting his right forearm causing lacerations and punctures to his skin, with severe and permanent injury and scarring.”

In the instant case, McKinley was in a public location (or, assuming the venue is privately owned, was an invitee). As such, he had the right to walk where he wanted, taking any path he chose to get from point A to point B. In fact, McKinley had every right to walk right up to the deputy if he wished, and, unless warned by the deputy to move away, McKinley had a reasonable expectation that the dog would not bite him. Thus, the argument that McKinley placed himself in the zone of risk by walking into the area where the deputy stood with the K-9 is without merit; to the contrary, the deputy created the zone of risk by patrolling the venue with his K-9-it matters not whether the deputy was walking around or standing still.

The court concluded that McKinley’s complaint contained enough allegations that allowed the suit to go forward, the decision to patrol the baseball venue with K-9s may have been discretionary, the act of patrolling the venue with K-9s was operational. Therefore, McKinley’s lawsuit is not barred by sovereign immunity.

Note: This court made a distinction between police injuring someone during the course of arrest for example or driving a car in the course of employment to enforce compliance with the law. Since there was a clear common law duty to make sure K9s did not bite civilians, the lawsuit was allowed to go forward. There are some hints to McKinley’s behavior, which may have been provocative to the K9. The next set of motions will tell the tale in more detail.

United States v. Davis (Minnesota) 2022 U.S. Dist. LEXIS 80618
Traffic Stop; Prolonged Detention; Reliability Foundation

Tribal police (TP) see a vehicle that they don’t recognize. The car is parked next to a known drug house. TP also sees a black male in the vehicle who they don’t recognize either. TP pulled over to surveil  the car and several minutes later, the car was driving away from the drug house. TP followed it. The car failed to use its turn signal when entering the freeway and TP pulled it over. The driver was a female and the passenger was Davis. Driver provided her license but couldn’t produce her insurance information. Other TP arrived, spoke to the occupants and signaled the TP who stopped the car to get the driver out. He walked over and had her exit the car. The second officer remained with the car and spoke with Davis. Davis was extremely nervous while watching the interaction between TP and driver; he was not wearing his seatbelt; his voice was shaky and wavering. Davis calmed down and provided a fake ID to TP. Meanwhile, driver was able to find her insurance information on her phone. All parties agreed that this marked the completion of the traffic stop investigation. TP then told her what they suspected which was Davis was in possession of drugs. After seeking her consent to search the car, TP stated the following to driver, “You can leave. Alright. But I gotta search, I’m gonna, ultimately we are either going to wait for a dog to sniff your car and if it alerts on your car then I’m going to search it or you can give me consent and I’ll search it real fast. Regardless, this whole process is going to go a hell of a lot faster.” Driver responded that the TP were “trying to scare her,” and both TPs stated that they were not trying to scare her. Driver declined to provide consent to search the vehicle. TP told driver that “usually when people don’t consent it kinda means they have something to hide.” TP then removed Davis from the car, and TP called dispatch to have a K9 team respond to the scene.

They waited about 70 minutes for the K9 team to arrive. During that time, both driver and Davis spoke to TP about general topics. At one point, driver walked to a nearby casino to use the bathroom and returned to the scene. When the K9 team arrived, the handler said he was going to take the food out of the car prior to the sniff. He opened a door, reached in and brought out several bags of food which he placed on the top of the car. Handler then got his K9 out but was unable to get the K9 to focus to complete a circuit of the vehicle. This was considered a fail and handler indicated this was the second time the K9 refused to sniff. As handler was walking back to the patrol car, he led her around the car, this time tapping intermittently on the vehicle and putting his arm through the open windows. The K9 then jumped through the open window. Handler got her out after about a minute and then went to the rear door, opened it and had K9 get into the car. Handler got K9 out, and asked occupants if there was anything in the glove box. Handler then said K9 had alerted to the glove box. During the search, Davis’ actual ID was found along with narcotics, a gun and a bunch of money.

Davis filed a motion to suppress. He initially challenged the stop itself, claiming that Minnesota law did not require the driver to signal when entering a freeway. Rather than dicker about an ambiguous statute, the court relied on precedent that as long as TP had a reasonable belief that the law had been violated, that was sufficient.

The court then addressed Davis’ complaint that the stop was unlawfully prolonged by the wait for the K9 team. The parties agreed that once the insurance information was shown to LE, the traffic investigation was over. The government argues that TP had reasonable suspicion to extend the investigation because the car had been at a known drug house; TP had seen Davis in the backseat of the car while at a known drug residence; Davis and driver provided conflicting and false information; Davis appeared nervous; and Davis provided false identification that registered from a known drug hub Chicago.

However, the court held that some of this information outlined above was gathered after the traffic investigation was complete (the Rodriguez moment). TP continued to talk to driver and Davis and obtained this additional information from them. Anything TP gained from their further interactions with the driver and Davis after the traffic investigation cannot be used to bolster reasonable suspicion that the occupants were involved in another crime. TP must have adequate, articulable reasonable suspicion at the time the traffic investigation stops. Here, they did not. According to the court, the car had been parked at a “known drug residence”; Davis had been in the backseat of the car when it was parked at the “known drug residence”; and the driver of the car had merged onto the highway without activating the vehicle’s turn signal. These factors, clearly, did not rise to the level of reasonable suspicion. Neither did Davis’ nervousness or the fact that the ID card he presented was out of Chicago. The motion to suppress was granted.

However, in an abundance of caution, the Court also addressed the parties’ arguments related to whether the K9’s purported alert during the K9 sniff of the car is sufficient to support the requisite probable cause for a warrantless roadside search of the car. The Government argues that K9 was reliable, and K9’s positive alert created probable cause to allow an on the spot search of the car. Davis argued that K9 a was not a reliable narcotics detection K9, did not perform a reliable alert for narcotics, and “was deployed in a manner which represents an egregious and bad faith violation of the Fourth Amendment.”

Assuming solely for the sake of argument that TP had the reasonable, articulable suspicion necessary to extend the traffic stop to permit Karma to conduct a perimeter sniff of the car, on the record now before the Court, TP lacked the probable cause necessary to search the car. K9’s purported alert while sniffing the Camry is insufficient to establish the probable cause necessary to search the car at the traffic stop.

In the present case, the court held that K9 fell short of the necessary reliability standard utilized by the Eighth Circuit Court of Appeals. On the record now before the Court, there is no indication K9 had been considered reliable by any prior Court. Moreover, at the time of the traffic stop, K9 was not a certified drug detection dog. (It had expired 6 months prior). K9 was not recertified until 6 months after the traffic stop. Although the Government attempted to explain this gap in certification by referencing the circumstances surrounding the Covid-19 pandemic, it does not alter the fact that K9 was not a properly certified narcotics detection K9. The record now before the Court simply lacked any evidence demonstrating that the K9 certification process was (nor could be) held in abeyance for any period of time due to the Covid-19 pandemic. More importantly, the Government failed to proffer any argument demonstrating that such hypothetical suspension of the K9 certification process would be constitutionally permissible. In short, at the time of the sniff of the car, K9 was not a certified narcotics detection K9, and at that time, K9 had not been a certified narcotics detection K9 for over five months.

K9’s lack of certification is not saved by the Government’s proffer of K9’s purported training records. Although the Government asserts that K9 had received “consistent, ongoing training,” there is no evidence in the record demonstrating even a minimally favorable performance by K9 during any of these so called training exercises.

Training records offered in support of the reliability of a narcotics detection K9 must contain sufficient information to permit a Court to determine said K9’s reliability in detecting narcotics. In the present case, K9’s purported “training records” fell well short of this requirement. For example, handler testified that he would train K9 by hiding narcotics in a particular location, such as a school’s classroom, to see if K9 would alert to the presence of narcotics. Handler recorded these trainings by taking a picture of the hide location and writing the date of the training on the picture. There is no indication in these records, however, as to whether or not K9 actually successfully located the narcotics on any of the dates indicated. Even assuming solely for the sake of argument that K9 did find some of the hidden narcotics, the records lack any indication as to the manner in which K9 was utilized in locating the narcotics, the length of time K9 required to locate the narcotics, the number of times K9 passed the narcotics without alerting, or the state of the environment surrounding the training. Although handler testified that he also occasionally trains with other K9 officers, including officers from other organizations, he does not keep any records regarding such purported training.

There were additional concerns regarding the offered purported “training records.” Some of the record entries did not even contain a picture. Instead, some of the entries are merely handwritten notes. One such entry provides only the following: “2-20-17 UNKNOWN HIDE PARTS BIN 5.3 G METH.” As with the other records, there is no indication of whether K9 located the narcotics, and if she did locate the narcotics, there is no indication of the methods used to do so. Even more concerning is the fact that the most recent record entry is dated over 14 months before the traffic stop. In other words, there is no record of any training whatsoever of Karma for the fourteen months prior to the stop of the Camry now at issue. Given this lack of substantive training records, the Court could not reasonably conclude that K9 had received proper, consistent training at the time of the traffic stop.

The concerns surrounding this lack of meaningful training records is exacerbated by handler’s description of his training process. For example, when asked whether K9 had ever “missed a [narcotics] hide” during training, Handler responded in the negative. Handler then stated that “sometimes K9 has to work a little harder than others and, you know, when we’re working together with somebody, I’ll say, No, it’s in here. It’s usually what I’m doing wrong. I’m not getting her to the spot, you know.” From handler’s testimony, it appears that handler characterizes any find by K9 as a successful find even if he leads K9 to the known location of the narcotics by telling her “it’s in here.”

The negative impact caused by this lack of meaningful training records is compounded by handler’s testimony regarding the lack of supervision over his deployment of K9, K9’s training, or the accuracy of their working together. Specifically, handler testified that he is his own supervisor, that “nobody” checks his K9 deployment records, and “nobody” monitors his training records. If his sergeant was in the office at the time, handler might inform his sergeant that he was going to train, but the sergeant would not have observed or monitored the training, and he would not have been advised of the results of said training. Handler also testified that there was no supervisor or other officer who monitor K9’s proficiency assessments.

When considering the on scene facts surrounding K9’s purported alert through the lens of common sense, there are additional factors which would preclude a reasonably prudent person from relying on K9 to support thinking that a search of the car would reveal contraband or evidence of a crime. Most notable is handler’s repeated testimony regarding K9 being “distracted” by the odor of food. Handler testified that K9 has a history of being distracted by food, and with regard to food, K9 “just goes for it.” Handler testified that in a previous conversation with another law enforcement officer he stated “[o]ur dog goes after food sometimes and that’s not right . . . the dog goes in and finds food . . . .” In the present case, this was concerning because there was food in the car immediately before K9 sniffed the car, and handler testified that K9 has a history of being distracted by food to the point that she will “just go[] for it.” Additionally, handler’s testimony that K9 has a history of becoming “a little animated in her breathing” in the presence of food is especially concerning because this is also an indicator handler noted K9 exhibits in the presence of narcotics.

There are yet still additional on scene factors which would lessen the probability that a reasonably prudent person would think that a search of the car would reveal contraband or evidence of a crime. As already noted above, the first time handler attempted to have K9 perform an exterior sniff of the car, K9 refused to comply. Rather than do as instructed K9 bit on her leash, pulled her leash with her mouth, and attempted to move away from the car. Moreover, the comments of TP on the scene of the traffic stop increase the negative effects of reliance on K9 because her refusal to comply was known by TP to undermine the probability that a reasonably prudent person would think that a search of the car would reveal contraband or evidence of a crime. As observed on the video evidence in this case, TP told the occupants about a previous traffic stop where he attempted to utilize K9 to sniff a vehicle because TP “knew” there was “something” in the vehicle, but K9 refused to comply. TP explained that K9 “shows up, doesn’t wanna sniff. Fucking bites on him, runs around, and causes hell. Finally, handler is like ‘I can’t get her to work, man.’ You gotta cut’ em loose.”

In summation, even assuming solely for the sake of argument that the Officers possessed reasonable, articulable suspicion to extend the traffic stop to include the K9 sniff, on the record now before the Court, the Government failed to demonstrate that, at the time of the traffic stop, K9 had received consistent, proper training; “had been examined and considered competent by independent evaluators”; “had been properly certified”; “had been considered reliable by prior courts,” or had an accuracy rating in excess of fifty percent. Based on a totality of the circumstances and for all the reasons discussed above, the undersigned finds that the Government failed to demonstrate K9 to be a sufficiently reliable narcotics detection K9, pursuant to the guidelines set forth by the Eighth Circuit Court of Appeals. Thus, any purported alert by this K9 on the car is alone an insufficiently reliable basis to establish or support a belief that probable cause existed for the presence of a controlled substance inside the car.

Note: Wow. Just…wow. While the case was decided on actions that happened before the K9 team got there, this court thought it important to address an issue that they thought was glaring. With this scathing language, this K9 team has sealed their fate as unreliable and therefore not useful to their department. Lapsed certification, terrible record keeping, hit and miss trainings that lack description, indications that no testing was blind (single or double blind) and no supervision. There is no more information about the recertification months later, but I, as a prosecutor, would want very detailed and specific records of the remediation as well as the new certification prior to using any evidence found after an alert by this K9. I don’t know where the fail is here, but this K9 team should be benched unless and until they get it together. They are a walking liability to their agency until they do so. 

People v. Javier (New York 2022) 2022 N.Y. Misc. LEXIS 1747
Traffic Stop; Odor of Marijuana as Probable Cause (post legalization)

LE saw a Honda making a right turn without signaling. LE followed the car and saw that it had temporary license plates that had expired. LE pulled the car over. Three LE approached. The driver’s window was open and Javier was in the driver’s seat. There were two women seated in the car — one in the front passenger seat, and the other was in the rear behind the front passenger. LE smelled “an odor of marijuana emanating from the vehicle.” Although he could not describe the smell, LE testified that it smelled like dry, as opposed to burning, marijuana based on his training and experience dealing with marijuana. LE testified that he had probable cause once he smelled it because it was illegal to possess marijuana.

LE introduced himself to the occupants and explained that he stopped the car due to the expired temporary license plate. LE asked Javier for his license but Javier did not have it with him. When LE asked Javier his name, Javier told him it was Gabriel Tejada. LE did not learn that Javier’s real name was Samuel Javier until after he was arrested and the arrest paperwork was processed. LE saw a marijuana cigarette in the center console of the car. LE asked Javier “if there was any more weed in the car . . . besides that blunt” in the center console. Javier responded that he had a “few more” baggies of marijuana. Javier then showed LE a “small [black] plastic bag that you like get from a grocery store.” Javier opened the bag for LE. The plastic bag contained eleven small bags of what appeared to be pre-packaged edible marijuana products in “gummy” form. Five of the bags were labeled “Gummie Bearz.” One bag was labeled “Bubble Gum Gelato.” Three of the little bags were open, and one was empty. LE described it as “multiple little baggies of marijuana” and “one cigarette.” The marijuana cigarette was lab tested; the gummy edibles were not. Even assuming that all of these “baggies” contained marijuana, it was clearly less than two ounces in total.

After getting the occupants out, LE searched the car, finding a gun.

Javier did not contest the reason for the stop, but argued that the evidence must be suppressed because the legal justification, probable cause, for the search was lacking.

The court held that there was no evidence, testimonial or otherwise, to suggest that LE in this case had any reason to believe that the car contained an amount of marijuana that was anything other than for personal use, or any other contraband. Without a basis to conduct a search, the gun must be suppressed.

Note: So New York goes the way of Colorado and California; as long as you only show LE a useable amount to justify the smell, you’re good to go. There are many arguments against this reasoning (arguments that make common sense) but courts will do what they do.

People v. Pastrana (New York 2022) 2022 N.Y. App. Div. LEXIS 2953
Checkpoint Stop; Odor of Marijuana as Probable Cause

Pastrana was stopped at a checkpoint where the policy was to stop every third car (randomized stops). The court found that the checkpoint officials were properly conducting random checks of vehicles.

When LE approached, LE directed Pastrana to roll down the windows, at which time he detected a “very strong” odor of marijuana emanating from the car. LE asked Pastrana to step out of the car and for his license and registration. When Pastrana did so, LE observed a “twist” of marijuana on the passenger side floor. Based upon the strong smell of marijuana in the car, and the presence of marijuana in plain view, LE searched the interior of the car for more marijuana. Noticing that the smell was strongest in the front passenger area in the vicinity of the glove compartment, LE opened the glove compartment wherein he discovered two large Ziploc bags. One contained seven bags of marijuana; the other contained a 9 millimeter firearm, a magazine and cartridges. The strong odor of marijuana, coupled with the visible presence of marijuana in the car, provided probable cause to search the interior of the car and provided a nexus that justified LE’s search of the glove box.

The court also addressed the newly enacted recreational marijuana law which affects whether a finding of probable cause may be made on evidence of the odor of cannabis and found it should not be applied retroactively. “[N]othing in the plain language indicates that the legislature clearly intended that provision to have retroactive effect”.

Note: So here’s another New York case that comes to the opposite conclusion, that the odor of marijuana in conjunction with a “twist” of marijuana was sufficient to search the entire car for contraband. The fact that it is a checkpoint may have factored into that decision, but still, it’s fascinating that two courts in the same state come to opposite conclusions.

United States v. Metts (Indiana 2022) 2022 U.S. Dist. LEXIS 81633
Reliability Foundation

In this case, Metts was at a casino where he inadvertently dropped a baggie of methamphetmine, a felony in this jurisdiction. He was driving a rental car and the rental car agency said he was overdue and they wanted the car back. They issued a repossession. The hapless Metts returned to the casino where LE was waiting for him. He was arrested on the methamphetamine charge and the misappropriation of the rental vehicle. K9 was then deployed on the rental vehicle, and alerted.

Metts argued that the K9 wasn’t adequately trained and certified when it alerted to the presence of narcotics in the vehicle and thus didn’t provide probable cause to search it. A K9’s “lack of a state certificate is not conclusive for federal constitutional purposes,” particularly when his “lack of certification was attributable to an administrative error, not incompetence on the job.” The ultimate question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.

On this record, K9 was trained and competent to identify narcotics, and his alert was reliable. The K9 passed his certification test for marijuana, cocaine, heroin, and methamphetamine and successfully completed a 240-hour basic class that included detection of marijuana, cocaine, heroin, and methamphetamine just the year before this sniff. The K9 trained twice a month thereafter, though the dog had been injured and at times during recovery trained less than the sixteen hours (total training hours) expected each month in 2021.

The number of training hours might bear on the reliability of a different K9 sniff, but not this one; and the mere variation from a training standard doesn’t mean that the Fourth Amendment was violated. Handler also testified that K9’s certification lapsed due to COVID-19, but he was recertified in December 2021 shortly after this October 2021 night. Nothing shows the K9’s training was so subpar as to make his capabilities or alert unreliable, particularly when he had just completed a 240-hour course in 2020, received ongoing training in 2021, and earned recertification shortly after this sniff.

Metts pointed out other performance characteristics of his concern. For instance, he said the K9 broke away from the vehicle during the sniff about the time of his third pass, but it was merely once; and that isn’t unusual given the people and traffic in the parking lot that evening. Metts also asserted that the K9 wasn’t reliable because he was rewarded every time in training and thus was conditioned to alert even absent the presence of narcotics. In actuality, the K9’s field use underscores that he won’t receive a reward merely for alerting; his alert in the field occurs without the promise of a reward, lending it further credibility. Metts last pointed to a previous false positive indication (not alert) this K9 made during a traffic stop in a separate investigation. The circumstances there were different. This night K9 not just indicated but then alerted by performing his trained response of sitting. The prior incident (involving no alert) speaks little to this occasion accordingly.

The sniff proved reliable based on this K9’s training, video of his free air sniff, and handler’s testimony, now credited by the court. In particular, the K9 here made several passes of the vehicle, designed to address wind shifts common to parking lots and to permit the K9 to do low, medium, and high sniffs. The K9 paused at the driver’s side door and alerted eventually at the rear passenger door. Before doing so, and eliminating any forceful argument that the K9 had been improperly “cued” to alert by its handler, handler released the leash before this alert. In addition, handler began to step back from the K9 toward the front of the BMW to see if the dog would break from his alert, but the dog remained. Only when handler walked toward his vehicle and called the K9 did he break. This alert may have been briefer than certain alerts by other dogs, but not materially so.

The court held this alert was valid and provided probable cause for the search.

Note: Interesting case in that they tried to attack the K9’s reliability foundation. This is a great example of documents and testimony providing the court with competent evidence that the K9 was reliable even though there was some lapse in certification and time off for an injury.

Commonwealth v. Baker (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 266
Traffic Stop; Alert as Probable Cause; Prolonged Detention

LE encountered Baker at a self service car wash after seeing him turn without signaling. He claimed he was washing off mud, but it was raining and there was no mud. During LE’s exchange with Baker, LE noted that Baker had bloodshot eyes and what he described as a “slow pace” of speech. Baker’s appearance and behavior suggested to LE that Baker could be under the influence of drugs. LE asked Baker to step out of the vehicle and began conducting field sobriety tests. Meanwhile, other officers copy that LE is stopped with Baker and a K9 team makes their way there. At some point during administration of the field sobriety tests, the K9 team arrived and performed a sniff search around the exterior of Baker’s vehicle while LE finished up with the field sobriety tests.

The field sobriety tests did not indicate that Baker was intoxicated; however, the K9 alerted to the presence of narcotics in Baker’s vehicle. The officers then searched the interior of Baker’s vehicle. During their search, the officers found a handgun under the driver’s seat of the vehicle, a pipe for smoking methamphetamine, a small quantity of methamphetamine, and what were described as marijuana crumbs throughout the vehicle.

The court first held that the contact with Baker was lawful, given the traffic violation. At that point, LE was permitted to collect Cook’s identifying information and check his criminal history. This was what LE was doing when the K9 team arrived on the scene, and nothing indicates that the K9 team’s presence delayed the traffic stop. LE testified that while talking with Baker, he observed that Baker’s eyes looked bloodshot and that his speech seemed unusually slow. Based on his training and experience, LE believed Baker’s appearance and behavior were indicative of him possibly being impaired by drugs. LE’s observations coupled with Baker’s having committed a traffic violation provided LE with a valid reason to extend the stop to conduct field sobriety tests.

LE began administering the field sobriety tests within approximately two minutes of speaking with Baker. This is a reasonable amount of time. Furthermore, since LE did not actually make a call seeking assistance from the K9 unit no argument can be made that LE delayed initiating the field sobriety tests for the purpose of securing the K9 unit. While LE was in process of conducting the field sobriety tests, handler arrived on scene with the K9 unit and conducted a sniff search of Baker’s automobile. Nothing in the record indicates that the K9 unit’s arrival delayed LE. In fact, as found by the trial court, the sniff was completed while LE was still administering the sobriety tests.

Even though the trial court did not find that the traffic stop and ensuing field sobriety tests were delayed by the K9 sniff, it concluded that the sniff was unreasonable because it was unrelated to purpose of either the initial stop or the field sobriety test. The trial court in effect concluded that there has to be probable cause for a police officer to conduct a sniff search of a stopped vehicle irrespective of whether the sniff delays the stop. It was here the trial court erred.

As recently clarified by the Kentucky Supreme in Connor, the sniff does not have to be related to the stop so long as it does not delay it. This is because vehicular dog sniffs do not in and of themselves violate the Fourth Amendment. The problem arises when the seizure of the person (i.e., the stop of the vehicle) is delayed so that the sniff can be performed. The delay may be justified in some cases if the subject does something or the officer sees something during the stop that causes the officer to have a reasonable and articulable suspicion that the subject is harboring drugs in his vehicle. However, in the absence of such intervening circumstances, prolonging the traffic stop or seizure of the person for a K9 sniff violates the Fourth Amendment.

Only where the sniff delays the stop do courts have to then have to consider whether it was justified by reasonable articulable suspicion.

Here, the stop here was not delayed so that a K9 sniff could take place. LE did not interrupt the stop to request the K9 unit; the unit arrived on its own and completed its work while LE was still in the process of completing the field sobriety tests. Since the sniff did not delay the stop, the sniff did not violate Baker’s Fourth Amendment rights. The lawfully conducted sniff, which resulted in a positive alert to the presence of narcotics, gave the officers probable cause to search the interior of Baker’s vehicle.

Note: Not sure why the trial court was using the wrong standard, but fortunately the appellate court got it right.