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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from March 2021. (A caution here: some cases are unpublished (Unpub.) 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. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)
Thank you for your membership. 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. You can also use our search feature to search the entire site. Each update has not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. If you would like me to address a particular issue, please feel free to email, text or call me.
On the marijuana front, New York has legalized recreational marijuana in theory and is in the process of creating an infrastructure to regulate and tax it prior to it being available to citizens. The effort to legalize recreational marijuana has failed, but expect the issue to be revisited. In Florida, there is now a split in the appellate courts regarding the issue of the smell of marijuana as probable cause in and of itself. The Florida Supreme Court will need to resolve this; in the meantime, be sure you know what jurisdiction you are in if you are in Florida
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. I do not represent any individual or agency. 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.)
INDEX FOR REVIEWED CASES FROM MARCH 2021
Dunn v. Manicki (Illinois 2021) 2021 U.S. Dist. LEXIS 62633 – Odor of Marijuana as Probable Cause; Alert as Probable Cause; Violation of Constitutional Rights; Heck Doctrine
State v. Brockman (S.C. 2021) 2021 S.C. App. Unpub. LEXIS 105 – K9 Tracking Evidence; Trail Contamination
Owens v. State (Florida 2nd Dist. 2021) 2021 Fla. App. LEXIS 4474 – Smell of Marijuana as Probable Cause
Arellano v. Haskins (California 2021) 2021 U.S. Dist. LEXIS 61352 – Excessive Force; Heck Doctrine
People v. Trone (California 2021) 2021 Cal. App. Unpub. LEXIS 2116 – Smell of Marijuana as Probable Cause
State v. Miles (Ohio 2021) 2021-Ohio-1029 – Alert as Probable Cause; Prolonged Detention
Grant v. Manning (Georgia 2021) 2021 U.S. Dist. LEXIS 60087 – Smell of Marijuana as Probable Cause; Excessive Force; Qualified Immunity
State v. Dotson (Washington 2021) 2021 Wash. App. LEXIS 711 – K9 Tracking Evidence
Baxter v. Roberts (Floria 2021) 2021 U.S. Dist. LEXIS 58693 – Prolonged Detention
Giles v. Commonwealth (Kentucky 2021) 2021 Ky. App. LEXIS 45 – Prolonged Detention
State v. Stands (North Dakota 2021) 2021 ND 46 – Prolonged Detention; Consent
State v. Bennett (Ohio 2021) 2021-Ohio-937 – Smell of Marijuana as Probable Cause
United States v. Hernandez (New York 2021) 2021 U.S. Dist. LEXIS 54500 – Curtilage; Good Faith Exception
State v. Brown (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 273 – Traffic Stop; Alert as Probable Cause
United States v. Woodley (Virgin Islands 2021) 2021 U.S. Dist. LEXIS 52736 – Smell of Marijuana as Probable Cause
State v. Shanklin (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 99 – Curtilage; Smell of Marijuana as Probable Cause
State v. Jones (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 157 – Traffic Stop; Alert as Probable Cause; Prolonged Detention; Alert Behaviors
United States v. Johnson (South Dakota) 2021 U.S. Dist. LEXIS 52210 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine; Consent
Adams v. Office of the Governor (Georgia 2021) 2021 U.S. Dist. LEXIS 51749 – Smell of Marijuana as Probable Cause
Ciezki v. State (Texas 2021) 2021 Tex. App. LEXIS 2030 (possibly unpub.) – Traffic Stop; Prolonged Detention
Thornton v. Sneed (Florida 2021) 2021 U.S. Dist. LEXIS 51323 – Excessive Force; Qualified Immunity
Skaggs v. Yoder (Indiana 2021) 2021 U.S. Dist. LEXIS 50130 – Excessive Force
Gonzales v. Smith (Arizona 2021) 2021 U.S. Dist. LEXIS 49428 – Excessive Force
Pimentel v. Plyler (South Carolina 2021) 2021 U.S. Dist. LEXIS 49196 – Prolonged Detention; Section 1983 claim
United States v. Boychief (Idaho 2021) 2021 U.S. Dist. LEXIS 48776 – Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reliability Foundation
United States v. Goldberg (10th Cir. 2021) 2021 U.S. App. LEXIS 7431 – Traffic Stop; Alert as Probable Cause; Final Indication;
Moore v. State (Maryland 2021) 2021 Md. App. LEXIS 224 – Traffic Stop; Reasonable Suspicion; Prolonged Detention; Inevitable Discovery
United States v. Tuschoff (Idaho 2021) 2021 U.S. Dist. LEXIS 47130 – Prolonged Detention; Traffic Stop; Collective Knowledge Doctrine
State v. Brown (Ohio 2021) 2021-Ohio-753 – Traffic Stop; Prolonged Detention
United States v. Bustamonte (Idaho 2021) 2021 U.S. Dist. LEXIS 44595 – Traffic Stop; Prolonged Detention; Collective Knowledgee Doctrine; Reliability Foundation
Keenan v. Ahern (Virginia 2021) 2021 U.S. Dist. LEXIS 44515 – Excessive Force; Qualified Immunity
United States v. Rose (Kentucky 2021) 2021 U.S. Dist. LEXIS 42872 (See also United States v. Rose 2021 U.S. Dist. LEXIS 41646 where the federal court adopted these findings) – Traffic Stop; Reliability Foundation; Probable Cause
State v. Rose (Vermont 2021) 2021 Vt. Unpub. LEXIS 21 –
State v. Double (Ohio 2021) 2021-Ohio-632 – Traffic Stop; Smell of Marijuana as Probable Cause
Vette v. Sanders (10th Cir. 2021) 2021 U.S. App. LEXIS 6462 – Excessive Force; Qualified Immunity
United States v. $32,920.00 in United States Currency (South Carolina 2021) 2021 U.S. Dist. LEXIS 40793 – Currency Sniff; Alert as Probable Cause
State v. Arivett (Oregon 2021) 2021 Ore. App. LEXIS 284 – Traffic Stop; Odor of Marijuana as Probable Cause
Koley v. Williams (Arizona 2021) 2021 U.S. Dist. LEXIS 40149 – Excessive Force; Bystander Liability
United States v. Mercado-Gracia (10th Cir.) 2021 U.S. App. LEXIS 6034 – Traffic Stop; Reasonable Suspicion; Alert as Probable Cause; Consentual Encounter
United States v. Solis (Kansas 2021) 2021 U.S. Dist. LEXIS 38134 – Traffic Stop; Presence of Marijuana as Probable Cause
REVIEWED CASES FROM MARCH 2021
Dunn v. Manicki (Illinois 2021) 2021 U.S. Dist. LEXIS 62633
Odor of Marijuana as Probable Cause; Alert as Probable Cause; Violation of Constitutional Rights; Heck Doctrine
In this section 1983 case, driver alleged false arrest, false imprisonment, excessive force, etc. During a traffic stop, LE smelled marijuana. Driver refused to exit, refusing repeated orders. A K9 was summoned and alerted. Several minutes later, driver was told he was under arrest for obstructing a police officer. Driver responded by driving off, with a LEO’s arm still in the vehicle, injuring him. Fortunately, LE had placed stop sticks in the path of the car in anticipation of such behavior, so driver was apprehended a short time later. A search of the vehicle revealed contraband of other crimes and marijuana. Driver later plead guilty to battery and eluding.
The court makes short work of the excessive force claim, finding no evidence of excessive force when viewing the totality of the circumstances. As for false arrest and false imprisonment, the court found not enough facts were pled to make a determination on the Heck Doctrine as a bar to proceeding against LE. However, the court did find on the facts that LE had probable cause at the time of the traffic stop (obscured plate), when LE smelled marijuana, when LE placed driver under arrest for obstruction and when LE was able to physically arrest driver. The K9 alert was not addressed because in a federal case, human detection of the smell of marijuana provides probable cause in and of itself.
Note: Federal jurisdictions still consider the smell of marijuana to be probable cause to search because marijuana is still completely illegal in those jurisdictions. This was a federal case because driver filed his claims in federal court under section 1983.
State v. Brockman (S.C. 2021) 2021 S.C. App. Unpub. LEXIS 105
K9 Tracking Evidence; Trail Contamination
Subject appeals his convictions for armed robbery, assault and battery and kidnapping. Subject claimed that the State v. White test for Brockman only argues the sixth prong of the State v. White test was not met. Accordingly, the appellate court reviewed the admissibility of the dog tracking evidence only as it relates to prong six. See State v. White (2009) 382 S.C. 265, 272; “[A] sufficient foundation for the admission of dog tracking evidence is established if (1) the evidence shows the dog handler satisfies the qualifications of an expert under Rule 702; (2) the evidence shows the dog is of a breed characterized by an acute power of scent; (3) the dog has been trained to follow a trail by scent; (4) by experience the dog is found to be reliable; (5) the dog was placed on the trail where the suspect was known to have been within a reasonable time; and (6) the trail was not otherwise contaminated.”
The appellate court found the trial court did not abuse its discretion by admitting testimony regarding the dog tracking evidence. LE testified that the known path the subject took was protected from contamination. The only evidence of possible contamination was refuted by testimony of LE at the scene.
Note: The appellate court went into great detail about how LE kept the trail from being contaminated. If you are a handler of a tracking dog, take a look at the foundation testified to by LE who were on scene. It’s a good example of the thoroughness the court will require to admit the evidence.
Owens v. State (Florida 2nd Dist. 2021) 2021 Fla. App. LEXIS 4474
Smell of Marijuana as Probable Cause
This was a traffic stop where LE was responding to a complaint of reckless and erratic driving. During the stop, driver had odd and erratic behavior, which, in conjunction with the smell of marijuana, gave LE enough to detain driver for possible DUI and to search his vehicle. There was no error in denying defendant’s motion to suppress because the recent legalization of hemp, and under certain circumstances marijuana, did not serve as a sea change undoing existing precedent, and, regardless of whether the smell of marijuana is indistinguishable from that of hemp, the smell of marijuana emanating from a vehicle continued to provide probable cause for a warrantless search of the vehicle.
Note: This position is inapposite to another Florida Circuit (20th), but in line with Florida’s 9th Circuit. This court did state that the smell of unburnt or fresh marijuana may present an affirmative defense but would not prevent the search. However, the court was careful not to make this a holding. Florida’s Supreme Court is going to have to weigh in soon. Medical marijuana is legal in Florida; possession of 20g or less is a misdemeanor.
Arellano v. Haskins (California 2021) 2021 U.S. Dist. LEXIS 61352
Excessive Force; Heck Doctrine
LE attempted to pull subject over for blown stop light. Subject stopped, got out and fumbled with his sweatshirt, reached into the vehicle appearing to reach for something, and threw gang signs. He then jumped back in and drove away. After a 2 hour chase, three spiked tires and blocking both lanes of traffic when the vehicle gave out, subject ordered out of his vehicle. LE claims subject was fiddling around in the car, reaching for objects and put car in reverse at one point, which would have rammed LE cruiser. A less-lethal projectile was shot into the car, shattering a window. After two announcements to get out of the car or a K9 would be sent, subject exited with one hand in the shape of a gun. Subject was told to get on the ground, but subject yelled for LE to shoot him, using his hand as a gun. Another less-lethal round was fired which hit subject, but had no effect. Subject continued to argue and K9 deployed. Subject taken to the ground with a leg bite. Subject followed instructions to put his hands out in front of him, and K9 was released. Other LE was able to handcuff subject at that point. Subject claimed he had surrendered prior to the K9 deployment. Driver ultimately pled no contest to a resisting arrest with force, Penal Code § 69.
Driver argued in this case that his claim is not Heck barred given that he “was charged with Penal Code 69, and later pleaded no contest (as opposed to guilty), because he allegedly mimicked a firearm with his hand and not because he was resisting.” However, at his preliminary hearing, the state court found that “all of the totality of the facts,” including the mimicking of a gun with his hand, “in conjunction with everything that happened in the chase,” show that a violation of California Penal Code § 69 was committed and, accordingly, the court ultimately determined probable cause to sustain that charge had been established. Furthermore, at his change of plea hearing driver agreed and stipulated, without any restriction or limitation, that the preliminary hearing transcript and the police reports supplied the factual basis for his no contest plea. Given that driver agreed and stipulated to a specific factual basis for his plea, he “cannot now pick apart the testimony that forms the factual basis.” Winder v. McMahon, 345 F. Supp. 3d 1197, 1206 (C.D. Cal. 2018). Because driver’s assertion that he did not resist arrest necessarily implicate the validity of his conviction in state court for violating California Penal Code § 69, his excessive use of force claim brought in this action is Heck barred and the court granted summary judgement in favor of law enforcement.
Note: In previous cases I have reviewed for Meyer’s K9 Law, I have suggested that the prosecution make sure a factual basis for the plea in which the behavior of resisting arrest is on the record or at least a factual basis is stipulated to by both parties. There are many ways to do this (in this case the PX transcript and the police reports were stipulated as the factual basis), but it needs to be done in the criminal court during the plea (or sentencing after a trial) so that the individual cannot back door a federal case for violation of his rights.
People v. Trone (California 2021) 2021 Cal. App. Unpub. LEXIS 2116
Traffic Stop; Smell of Marijuana as Probable Cause
Traffic stop for lighting violation. LE noticed a strong odor of marijuana from the vehicle when he was two to three feet away. The prosecutor did not ask any questions concerning the nature of the odor, other than that it was strong. LE did not testify as to the nature of the area, whether it was known for drug sales or other criminal activity. He offered no testimony about the appellant whether he was acting furtively, wore certain types of clothing, or was acting suspiciously. In short, the only probable cause to search was based on the mere odor of marijuana. Therefore, testimony did not establish probable cause. As such, the trial court’s denial of the motion to suppress must be reversed.
Note: This case is in keeping with California’s other jurisdictions that the smell of marijuana is only a factor in determining probable cause.
State v. Miles (Ohio 2021) 2021-Ohio-1029
Alert as Probable Cause; Prolonged Detention
Driver was pulled over for a turn signal violation. Within 3 minutes (during which LE determined that the vehicle had a malfunctioning turn signal, did not belong to the occupants and that no one had a driver’s license) LE called for a K9 team. Two minutes later, K9 team arrived and alerted 3 minutes after that. Inside the vehicle was methamphetamine. Since LE testified it took him 10-15 minutes to write a citation, and the alert happened within that time frame, there was not prolonged detention.
Note: Be aware that the USSC case of Rodriguez governs this type of situation and that reliance solely on the actual time spent is not not necessarily supported by Rodriguez. Here, the court basically said that LE had 10-15 minutes to perform a K9 sniff because that was how long LE took on average to complete a citation. Other jurisdictions have been much more nitpicky and have analyzed whether even stopping the investigation of a traffic violation to call for a K9 team can be a prolonged detention. Make sure you know your jurisdiction’s position.
Grant v. Manning (Georgia 2021) 2021 U.S. Dist. LEXIS 60087
Smell of Marijuana as Probable Cause; Excessive Force; Qualified Immunity
During a traffic stop for speeding, LE detected the odor of marijuana coming from the car as he spoke with driver. LE asked if he could search the vehicle and mentioned that he smelled marijuana. Consent was denied. LE then started writing the citation as a K9 team sniffed the car and alerted. Driver was removed and placed in a cruiser after a significant amount of shenanigans by driver. A search of the car revealed only a small amount of marijuana scattered on the floor board.
Driver then sued for violation of his constitutional rights under section 1983. The appellate court first held that courts have long held that the smell of marijuana provides reasonable suspicion to extend the duration of a traffic stop as well as probable cause to investigate possible criminal conduct. This, then, gave LE probable cause to call in a K9 team and after an alert, search the car. Therefore, driver could not show that any of his constitutional rights were violated by LE. Because driver did not produced evidence from which a reasonable jury could conclude that LE violated driver’s constitutional rights when LE conducted the search of driver’s vehicle, LE was entitled to qualified immunity and the court granted LE’s motion for summary judgement.
Note: Recreational use is still illegal in Georgia, with the exception of a few cities. Medical marijuana allows for cannabis that contains less than 5% THC.
State v. Dotson (Washington 2021) 2021 Wash. App. LEXIS 711
K9 Tracking Evidence
After being convicted of commercial burglary, Dotson appealed. During the investigation of the burglary, LE arrived on scene to find the door dangling and the interior ransacked. Surveillance footage showed the burglar. A K9 team was brought in to try and track the burglar. The K9 alerted most strongly in the northern direction from the business, but did not locate anyone. However, Dotson was found in the area, wearing identical clothing as the burglar and the owner of the business identified Dotson was the burglar. Dotson was in possession of a weapon that could have made the marks found on the forced door. And Dotson was walking only four blocks north of Sparta’s, the same direction that the tracking dog alerted most strongly. K9 participation was considered as a factor in the court finding probable cause for Dotson’s arrest.
Note: This was a tracking case, but the K9 did not locate the suspect. However, the fact that the K9 showed the most interest in the direction where Dotson was ultimately apprehended was a factor in establishing probable cause. Not a lot in terms of weight in determining probable cause, but everything helps.
Baxter v. Roberts (Florida 2021) 2021 U.S. Dist. LEXIS 58693
Prolonged Detention
During a traffic stop for lane violations, LE spotted an open can of beer. Driver could not find his registration. LE then went back to cruiser to run driver’s license. When LE returned, LE told driver that LE was going to issue a warning citation for open container and that driver should sit tight because LE was going to perform an open air K9 sniff. LE then went back to the cruiser and started the citation. LE then ordered driver out so he could perform the sniff with his K9. There was some verbal resistance, but driver ultimately got out of the car. However, there was a physical fight over the keys which resulted in driver face down on the pavement. Driver was cited for resisting and open container. K9 alerted and a gun was found.
Baxter argues that LE unreasonably prolonged the scope of the stop by ordering him out of the vehicle for the sole purpose of unlawfully investigating for drugs via a dog sniff, without probable cause or a reasonable individualized suspicion of narcotics to prolong the stop. The appellate court disagreed. First, during a lawful traffic stop, an officer may instruct a driver or occupant to exit the vehicle. Secondly, the K9 sniff must take place during the traffic stop or must be in response to additional probable cause. LE had not yet given driver the ticket, and, especially in light of the open container observed in the truck, the scope of the stop was sufficiently broad to include a lawful order to step out of the truck and hand him the keys for officer safety. The open container was a statutory violation which objectively justified further inquiry, including an order to exit the vehicle. Despite the fact that LE stated he intended to conduct a K9 sniff, his subjective motivations have no bearing on the objective inquiry into whether the stop and its scope were reasonable on the totality of the circumstances. On the undisputed facts, no reasonable officer in the same circumstances would have thought it was unconstitutional to order driver out of the vehicle after observing an open container. And in fact, the stop was not prolonged by a K9 sniff (as LE admittedly subjectively intended). Instead, it was prolonged by driver’s resistance to lawful commands to exit the vehicle and hand over the keys for safety.
Note: There were more issues raised by driver, but not really relevant here. The Rodriguez test was appropriately applied here.
Giles v. Commonwealth (Kentucky 2021) 2021 Ky. App. LEXIS 45
Prolonged Detention
In this case, a narcotics detective radio’d that a white Altima had just left a drug house on Locust Street. LE was on Locust Street and saw a white Altima. The license tag was expired, so LE performed a traffic stop. None of the occupants had a license and none were the owner of the vehicle. In addition, occupants could not find the registration. The narcotics detective was informed of the stop and there was discussion about bringing in a K9 and trying to get consent as LE had spotted a plastic baggie in the console area. LE then engaged occupants in conversation about their travel. Consent was denied. LE then conversed with other officers on scene and concluded that the baggie was not indicative of narcotics. They agreed they didn’t have anything. The detective was informed and there was a decision to have a K9 team respond. However, there were no teams in the area. Several minutes passed by and conversation was had with the detective about smell while LE working on his computer. While LE was writing the citation, there was information that a K9 team was en-route. About 30 minutes into the stop, LE finished his citation about the time that the K9 team arrived. Occupants were asked out and K9 alerted.
The appellate court held that under the Fourth Amendment, the trial court erroneously denied defendant’s motion to suppress evidence seized from the automobile because, although the initial stop of the car was a lawful traffic stop based upon the vehicle’s expired license plate tag, the traffic stop was prolonged beyond the time reasonably necessary to issue a citation for the expired license plate tag; and there was no reasonable and articulable suspicion of criminal activity to justify prolonging the stop for a K9 unit to arrive as the officer acknowledged there was no contraband in plain view and there was no plain smell; and there was no testimony or other evidence presented at the hearing regarding the basis for the narcotic’s detective’s belief that the house that defendant’s car had just left was a known drug house.
Note: This result is not surprising. However, the court did indicate that there was no testimony that indicated this was a drug house. That information could have been put on during the hearing, but it wasn’t. It is crucial that if you are going to rely on a conclusion (this is a drug house), the prosecutor needs to put on evidence to support that opinion.
State v. Stands (North Dakota 2021) 2021 ND 46
Prolonged Detention; Consent
LE stopped driver for running a stop sign. Driver exited the vehicle but kept putting his hands in his pocket. He did not provide identification, but gave his name and DOB to LE. LE returned to cruiser and asked that a K9 team be sent. LE then returned to driver and asked driver if he had anything on him and if she could search him. Driver consented. He had a scale with meth residue, pipe and cash. Driver was detained in the back of the cruiser. Driver told LE that he was a user and he had used 5 hours prior. About 35 minutes into the stop, the K9 team arrived and alerted. Meth was found in the vehicle.
The court found that driver gave valid consent. Driver also complained that the stop was unduly prolonged. The court ruled in favor of LE, stating that at the time of the sniff, the purposes of the traffic stop had not been completed. LE had not issued Stands a warning or a ticket. LE had just exited her vehicle after requesting a drug dog and running a records check, and then LE resumed speaking with driver. Driver does not claim that LE deliberately delayed the stop so a K9 could arrive on the scene. The district court made no findings regarding the time it took for LE to ask two questions: “Do you have anything on you I should know about right now?” and “Can I search you?” However, absent evidence of deliberately delaying the traffic stop, the Fourth Amendment does not require the court to “impose a constitutional mandate for time efficiency over incidental questions” such as the ones asked by LE. LE asking these two questions did not prolong or measurably extend the traffic stop.
The court also held that there was no prolonged detention. “A stop may be prolonged only if the officer has reasonable suspicion to justify detaining the individual for inquiries unrelated to the stop.” In addition, an officer may also extend or expand the scope of a traffic stop if the encounter becomes consensual. Once driver provided LE with consent to search his person, the continued encounter became consensual and was permissible under the Fourth Amendment. Once driver provided his consent for the search, he also provided consent for the continued encounter and time necessary to search him. Therefore, LE did not unlawfully extend the traffic stop when she questioned and searched driver.
Note: Good outcome and good description of consent by LE. It’s worth reading for that at least.
State v. Bennett (Ohio 2021) 2021-Ohio-937
Smell of Marijuana as Probable Cause
Defendant was a passenger in a vehicle stopped by LE for an improper license plate. LE smelled the odor of burnt marijuana and alcohol. A small amount of marijuana and 2000g of cocaine was located in the vehicle. The driver was arrested for driving under the influence.
The appellate court held that the trial court did not err in denying defendant’s motion to suppress evidence obtained as a result of the traffic stop as LE. LE had reasonable suspicion to initiate the stop because of the license plate violation and probable cause to search the passenger compartment of the vehicle due to the odor of marijuana. In addition, LE did not base his search of the vehicle on his arrest of the driver for operating vehicle while intoxicated or on defendant’s statement that she had been smoking marijuana for the previous two days; to the contrary, the search occurred before LE administered a field sobriety test on the driver and arrested her for OVI (DUI). Instead LE testified that he searched the interior of the vehicle because he detected the odor of marijuana coming from inside the vehicle upon his initial approach to the vehicle. The court upheld this search as justified by probable cause.
Note: Ohio has not legalized recreational marijuana (with the exception of the City of Cinncinnati).
United States v. Hernandez (New York 2021) 2021 U.S. Dist. LEXIS 54500
Curtilage; Good Faith Exception
K9 sniffed a vehicle in a driveway after LE lifted a tarp covering the vehicle. K9 sniff was within the curtilage but saved by good faith doctrine (meaning LE was in the wrong legally but not acting unreasonably).
Note: The good faith exception exists because a reasonable mistake by LE would not be cured by suppression of the evidence because, since the mistake was reasonable, no deterrent effect is needed. The courts want LE to be reasonable. A knowing or unreasonable violation of the law can be cured by suppression of the evidence because a deterrent effect is necessary in these situations.
State v. Brown (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 273
Traffic Stop; Alert as Probable Cause
During a traffic stop, LE learned that driver did not have a license but had an arrest warrant from the Department of Corrections. During a search incident to arrest, LE found a cut straw (drug paraphernalia). Driver was taken to the jail for booking after securing the vehicle in the gas station parking lot. There, LE learned that the warrant was for drug crimes. Driver admitted to prior use of drugs. Driver’s girlfriend and the owner of the car called on driver’s cell phone and he was allowed to tell her she could pick up the keys from the jail. Several hours later, LE read a report where the arresting officer had located a fanny pack under the driver’s seat with contraband on a previous contact. LE went back to the car about 3:30 a.m. and could see a bag under the driver’s seat. LE then requested a K9 team which alerted on the car. A search warrant was issued for the vehicle and contraband was found.
The court affirmed the denial of motion to suppress evidence obtained through a dog sniff and resulting car search because the totality of the circumstances supported district court’s conclusion that officer had reasonable, articulable suspicion that defendant may have possessed drugs in the car. LE knew the following facts when he requested the K9 sniff: that defendant had a probation violation warrant connected to a controlled substance conviction, he had a cut straw in his pocket, he admitted to using marijuana within the last three to five months and to using cocaine in the past, he was arrested in May 2019 driving a car with what arresting deputy believed was methamphetamine located in a case under the front seat, and that there was a tan bag under the passenger seat of the car defendant was driving when officer arrested him.
Note: Good work on LE’s part in putting all this together quickly enough to get the car searched. LE probably did not need a warrant because of the automobile exception, but in this case, the facts were funky enough that getting a warrant was a sound decision. It also puts the burden of proving the warrant was not supported by probable cause on the defense, rather than on the government if there isn’t a warrant.
United States v. Woodley (Virgin Islands 2021) 2021 U.S. Dist. LEXIS 52736
Smell of Marijuana as Probable Cause
During a traffic stop, LE detected the smell of fresh marijuana coming from the vehicle. An officer arriving later also smelled marijuana. The Court found that the evidence presented at the suppression hearing demonstrates that there was an articulable and particularized odor of marijuana sufficient to establish probable cause to search the vehicle.
Note: The Virgin Islands are a territory and therefore fall under federal law.
State v. Shanklin (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 99
Curtilage; Smell of Marijuana as Probable Cause
LE smelled marijuana while at a motel on an unrelated matter. LE knocked on the door and Shanklin answered. The smell intensified. Told to exit, Shanklin retreated into the room and tried to shut the door. Shanklin did not have a clear answer as to whether others were in the room so LE performed a protective sweep. Shanklin took off running but LE was able to catch him. A search warrant was sought in which LE swore that they smelled marijuana coming from Shanklin’s room, that Shanklin tried to flee but was caught and told LE that he had marijuana in the nightstand but refused consent to search the entire room. LE also described the protective sweep and that LE saw in plain sight cigarillos and tobacco.
In reviewing the denial of a motion to suppress evidence, the court held that, although Shanklin had a reasonable expectation of privacy in the motel room that he rented, he had no expectation of privacy in the sights, sounds, and smells detectible in the breezeway; and the presence of LE on the motel breezeway was not a search within the meaning of the Fourth Amendment. LE smelling the door jambs did not violate Shanklin’s reasonable expectation of privacy as LE was in a place where they had a right to be present. The seized evidence was admissible as it was obtained pursuant to a valid search warrant supported by probable cause because LE smelled the odor of raw marijuana emitting from the interior of Shanklin’s motel room; and Shanklin stated that there was marijuana in a nightstand in the room.
Note: Although a K9 was not involved with this case, I thought this case was interesting in that the smell of marijuana was the probable cause for the search warrant to issue. If a K9 had alerted on the door seam, this case would have gone the other way because a K9 has superior abilities that the average person has not consented to cross the boundary of the curtilage. But since humans do not have such superior powers, and it is socially acceptable for people to be in a shared breeze way and as close as the seam of the door, the evidence was admissible.
State v. Jones (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 157
Traffic Stop; Alert as Probable Cause; Prolonged Detention; Alert Behaviors
After a tip from a paid CI, LE started an investigation and surveillance on Jones for drug trafficking. Two controlled buys were done and a GPS tracker via warrant was attached to Jones’ vehicle. LE saw the vehicle made round trips to Kansas City from Topeka. In addition, the CI indicated that Jones was planning another trip to pick up meth. A marked unit was asked to stop the vehicle. As Jones was returning to Topeka, Jones was stopped for a window tint violation. A warning citation was given to Jones and LE started to walk away. LE then came back to Jones and asked for consent. Jones refused. At that point, Jones was ordered out of the car to await a K9. The K9 then alerted on the vehicle. During the motion, LE relied on more than just Jones’ nervousness to establish reasonable suspicion to extend the stop for a dog sniff, including Jones’ sweatiness, his dry mouth, his untruthful answers, and the corroborated CI tip.
In determining whether a reasonable suspicion exists, the court is to consider the totality of the circumstances and it “does not envision a reviewing court pigeonholing each factor as to innocent or suspicious appearances.” Granted, much of the evidence supporting reasonable suspicion here came from what LE already knew before he stopped Jones’ car. But under the facts and circumstances of this case, the trial court correctly found LE had a reasonable suspicion to extend the traffic stop.
Jones then attacked the alert of the K9. Jones entire argument relies on his assertion that the K9 did not give a final alert and, thus, there was not probable cause to search the interior of his car. But as the State correctly pointed out, handler testified that the K9 is trained to give the final alert, by sitting, only when his nose is touching the source of the narcotic odor. Jones’ argument disregards handler’s other testimony, which the trial court found persuasive and dispositive. Handler explained that when his dog’s nose cannot touch the source of the odor, he can still tell that the dog has detected the odor of narcotics because the dog’s ‘body posture and behavior changes—he stays in one area, he deeply inhales, his paw grip changes, and his tail stops moving. This change in behavior shows the dog is “in odor.” Therefore, there was probable cause to search the vehicle.
Note: Good testimony about the unique alert behaviors of this particular K9. My suggestion is that every handler prepare a statement about the unique alert behaviors of his/her particular K9 so that when asked on the stand, you have already thought about how to verbalize this. That will make things go much smoother in court where you are under the stress of testimony.
United States v. Johnson (South Dakota) 2021 U.S. Dist. LEXIS 52210
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine; Consent
During an investigation of phone use by jail inmates to contact co-conspirators on the outside, LE discovered that a Pontiac involved in the trafficking was being driven away from the source house. It was registered to Johnson and had dark tint. It appeared to be doing counter surveillance moves. A marked unit stopped the vehicle and Johnson was the driver. Johnson admitted to being suspended. LE called for a window tint meter because the battery died on his meter. LE told Johnson that he was going to cite him for being suspended and warn him on the tint, but that LE wanted to get an accurate reading on the tint, so he was waiting for the other unit to arrive with the meter. During the wait, LE asked interdiction questions. Johnson denied possessing anything and consented to a search of the passenger compartment but not the trunk. The other unit arrived and measured the window. At that point, LE called for a K9 unit. While waiting, there was more discussion between LE and also between LE and Johnson. LE told Johnson that he could have someone come pick up the car since Johnson could not drive it away. 18 minutes in, LE printed the citation. 24 minutes in, LE printed the warning citation and handler began sniff. About a minute later, K9 alerted. Johnson was then given the citations. Johnson’s grandfather arrived to pick up Johnson’s dog at about 46 minutes in, after the search predicated on the K9’s alert.
Johnson complained that the search of the vehicle was unconstitutional and filed a motion to suppress. The court initially rejected the government’s argument that the collective knowledge doctrine applied as LE conducting the traffic stop did not have enough information that the vehicle and/or Johnson were involved in the trafficking scheme. Therefore, the court had to analyze the stop under the framework of Terry and Rodriguez.
The court held that the scope of LE’s initial traffic stop of Johnson was expanded once he ascertained that John1son would not be able to remove the vehicle from the scene and that a licensed driver or a tow truck would need to remove the vehicle. Thus, the time reasonably required to complete the traffic stop includes not only the time required to issue the window tint warning and the driver’s license citation, but also the time reasonably required for someone else to arrive on scene to remove the vehicle. If the K9 sniff occurred within the time reasonably required for someone else to arrive to pick up the vehicle, the detention was not unlawfully prolonged.
Here, LE’s development of probable cause based upon the K9’s positive indication occurred within the time reasonably required for someone to arrive and lawfully drive the vehicle away. Although he did not come to pick up the vehicle, the grandfather came to the scene to pick up Johnson’s dog. The arrival of Mr. Johnson’s grandfather marks the extent of time reasonably required for someone to come pick up the vehicle. Because LE developed probable cause to believe there were drugs in the vehicle’s trunk before the grandfather arrived, the dog sniff, an activity unrelated to the mission of the traffic stop, did not extend the duration of the stop. Therefore, the stop was not prolonged and did not violate Rodriguez.
Note: Even though the collective knowledge doctrine was found to not apply, the government argued several theories and the court found that LE had developed enough probable cause at the scene to extend the stop until the dog arrived. Admissibility can be based on multiple theories so all should be argued. Also, note that Johnson limited his consent to the passenger area. This illustrates the problem with consent; it can be limited or withdrawn at the whim of the consenter.
Adams v. Office of the Governor (Georgia 2021) 2021 U.S. Dist. LEXIS 51749
Smell of Marijuana as Probable Cause
In this in pro per filing, the court made short work of plaintiff’s complaints, concluding easily that the federal precedent dictates that the smell of marijuana provides probable cause to search and that the automobile exception to a search warrant also applied. Plaintiff’s case was dismissed.
Note: Cannabis (marijuana) in Georgia is illegal for recreational use, but decriminalized in the cities of Atlanta, Savannah, and a few others. Limited medical use is allowed in the form of cannabis oil containing less than 5% THC. Marijuana remains federally illegal for any reason.
Ciezki v. State (Texas 2021) 2021 Tex. App. LEXIS 2030 (possibly unpub.)
Traffic Stop; Prolonged Detention
LE received information that an unknown white couple were travelling in a white Jeep and there might be narcotics in the vehicle. LE spotted the vehicle and watched a white male and a white female come and go from the vehicle. The vehicle then drove away with LE continuing surveillance. A marked unit conducted a traffic stop after observing 3 traffic violations. A K9 team was just behind the marked cruiser. Once the occupants were removed and another officer was running everyone’s licenses, the K9 team performed an open air sniff and the K9 alerted. The vehicle was searched and contraband found.
The front seat passenger (defendant) appealed his convictions. The appellate court found that the trial court did not commit error when it denied defendant’s motion to suppress because the open-air sniff was conducted lawfully and the record reflected that the traffic stop was objectively valid pursuant to the Fourth Amendment. The officer testified that he observed at least three traffic violations and therefore, reasonable suspicion existed to stop and detain the vehicle’s occupants based on those traffic violations. The open-air sniff was conducted while the traffic stop was still ongoing.
Note: Textbook situation where the K9 on scene during the time in which the stopping officer is engaged in the traffic violation investigation/duties. Great way to operate if possible.
Thornton v. Sneed (Florida 2021) 2021 U.S. Dist. LEXIS 51323
Excessive Force; Qualified Immunity
Thornton had just committed an armed burglary and fled from the scene and hid in a swampy area full of sawgrass. K9 team was deployed to search for Thornton, and the handler was aware that the fugitive had just committed armed burglary. the time Plaintiff was apprehended, he had just committed an armed burglary. The K9 found Thornton where he had concealed himself and bit him. After a struggle, the K9 was removed before Thornton was handcuffed. Thornton was treated for the bite and it was documented as a “very tiny bite mark on right leg.”
Thornton complains that Plaintiff contends that Defendant used excessive force in effectuating his arrest. He claimed that warnings given by the handler were insufficient, claiming he was asleep when the K9 bit him, and he woke up because he was being bitten.
The appellate court held that the handler was entitled to qualified immunity. It was undisputed that handler had probable cause to detain Thornton. Thornton had just committed an armed burglary and aggravated assault and had fled from the victims into an area of dense vegetation. Handler arrived on the scene with his canine and, although he was aware that Thornton had dropped the weapon used in the burglary, he did not know whether Thornton had any other weapons. Under these circumstances, it was reasonable for handler to use a canine to locate and detain Thornton.
The court went on to hold that there was no dispute that handler issued canine warnings and received no response. Thornton contended that the warnings were made at a distance where he could not hear them; yet, Thornton also claimed that he was sleeping until the time that he was bitten by the canine. Thornton failed to respond to handler’s warnings which would lead a reasonable officer to believe that Thornton was attempting to evade detection and apprehension. It is clear, therefore, that up until to the point of apprehension, handler’s actions were reasonable and did not violate Thornton’s constitutional rights.
The court then addressed the duration of the bite. While Thornton claimed he was bitten for more than 11 minutes, the CAD records and the photo of the bite showed that was not the case. In addition, Thornton agreed he was fighting the dog and also agreed that the dog was released prior to Thornton being handcuffed.
Because the handler acted reasonably, he was entitled to qualified immunity and the case was dismissed.
Note: Great example of letting the defendant dictate the use of the K9. Here, the K9 was deployed when the defendant concealed himself and was released as soon as the defendant obeyed instructions from LE. If defendant had started to resist again, the handler could always redeploy.
Skaggs v. Yoder (Indiana 2021) 2021 U.S. Dist. LEXIS 50130
Excessive Force
Skaggs was wanted by LE and when they arrived, he hid in the attic. LE found him and Skaggs claimed he surrendered. His allegations in his complaint were as follows: he was told to jump down, but the K9 was in the way. As he hesitated, LE pulled on him and he ultimately jumped down. He was then beaten by 6-8 officers and handcuffed. The handler then deployed the K9 who bit him on the shoulder and down his back. He was then handcuffed, and while in restraints, the K-9 dog was released long enough to bite him on the shoulder and down his back. His wounds were treated at a hospital.
The court held that Skaggs stated a claim against the handler and another officer as they were identified by name in the complaint. The complaint alleges that the officers beat him even though he was not resisting, and then the K-9 dog bit him after he was handcuffed. He has plausibly alleged that these actions were objectively unreasonable.
Note: While this sounds like a set back for LE in this case, this plaintiff is in pro per and the courts are required to review any inmate filing for a valid claim. This is an incredibly low burden and while it was met here, it doesn’t mean that the plaintiff isn’t lying or that LE was justified in their actions. That is for another day in court.
Gonzales v. Smith (Arizona 2021) 2021 U.S. Dist. LEXIS 49428
Excessive Force
Plaintiff alleges that LE responded to a burglary call. Handler encountered Plaintiff, who ran from Handler. Handler chased Plaintiff with a police canine, released the canine, and commanded the canine to bite Plaintiff. Plaintiff asserts the dog caught him, pulled him to the ground, and began to viciously bite him. Plaintiff alleges Defendant Smith allowed the canine to continue biting Plaintiff’s arm, while Plaintiff was helpless and subdued. Plaintiff contends Defendant Smith “allowed his police canine to continue biting Plaintiff’s arm beyond that which was necessary to apprehend and detain Plaintiff and this unnecessary use of force was unreasonable.” Plaintiff also claims that his movements, as he lay on the ground, were “merely in reaction to the severe pain caused by the dog’s teeth ripping open Plaintiff’s flesh.”
The court is required to screen all inmate cases brought against a governmental agency. The claims alleged were against the handler and the handler’s unnamed supervisors. Here, the court found that plaintiff had stated an adequate claim on the handler, but because the supervisors were unnamed, the court gave the plaintiff time to discover who they were.
Note: Again, this is a very preliminary stage and LE will have an opportunity to refute the claims by plaintiff if the case continues to proceed.
Pimentel v. Plyler (South Carolina 2021) 2021 U.S. Dist. LEXIS 49196
Prolonged Detention; Section 1983 claim
Pimentel was stopped on his moped because of lighting violations. During the 30 minute stop, handler deployed his K9 to sniff Pimentel and his moped. After an alert, handler then searched Pimentel and his moped, including closed containers.
However, there was no evidence given by the defense that the sniff did or did not prolong the traffic investigation. Therefore, for purposes of this preliminary motion, the court was obligated to deny motion to dismiss by defendant LE.
The court, having found Pimentel had demonstrated a plausible claim, denied LE qualified immunity at this stage as well.
Note: Again, this is a very preliminary stage and LE has not had its chance to offer evidence.
United States v. Boychief (Idaho 2021) 2021 U.S. Dist. LEXIS 48776
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reliability Foundation
LE observed a vehicle leaving a drug house. During a traffic stop for equipment violations, driver was looking for proof of insurance coverage when LE took K9 around the vehicle in a free air sniff (human LE smelled marijuana when first approaching the vehicle). K9 alerted and driver asked to step out. Driver still had not located insurance information. Driver admitted smoking earlier and admitted being in possession of a small amount of marijuana. Vehicle searched and contraband found.
Defendant filed a motion to suppress. The court first held that LE had probable cause to search the appropriately stopped vehicle because it 1) had left a known drug house; 2) LE smelled marijuana and 3) driver admitted to possessing marijuana.
The court found no undue prolongation; the sniff took place during the time driver was still searching for proof of insurance. In addition, LE had reasonable suspicion to prolong the stop once the human LE smelled marijuana.
The driver then focused on the reliability foundation of the K9. Defense expert Falco Jiminez testified. Both sides wrangled back and forth; however, the K9 was certified and had stellar training statistics.
Note: This was a case where the defense challenged as much as they could. Good report writing and good record keeping was what assisted LE to a winning position.
United States v. Goldberg (10th Cir. 2021) 2021 U.S. App. LEXIS 7431
Traffic Stop; Alert as Probable Cause; Final Indication;
LE stopped Goldberg for traffic violations. While the trooper was writing a warning, another trooper brought a K9 to the scene. While walking the K9 around Goldberg’s vehicle, the handler saw that she “slowed down, became more methodical around the passenger side rear hatch of the vehicle.” He also “noticed when we got to the passenger side front door, the window was down and she sticks her nose up there and actually hops up, puts her paws up on the vehicle and moves her head back and forth. And then she gets off of the vehicle and just stands still and freezes.” Interpreting her behavior as an alert, LE searched the vehicle, uncovering two kilo-sized bricks of cocaine.
Goldberg complained that since the K9 did not perform a final indication, LE could not conclude that the behavior of the K9 was indicative of finding the smell of narcotics. The court held that an alert, as opposed to a final indication, is sufficient to establish probable cause. The court therefore affirmed the denial of the motion to suppress.
Note: Handler’s description of the K9’s actions, rather than a conclusion, was the reason the court was able to make this finding.
Moore v. State (Maryland 2021) 2021 Md. App. LEXIS 224
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Inevitable Discovery
K9 team arrived at a traffic stop while Detective Converse was sitting in the driver’s seat of his vehicle, in the process of checking driver’s license, confirming, talking with dispatch, and checking the registration. Driver’s license was ultimately found to be suspended. While this was happening, Detective Musgrave got driver out and explained to the handler who was in the vehicle and what the stop was for. K9 team began “an exterior sniff of the vehicle” and the K9 made a positive alert within “[t]hirty seconds[,]”. The handler immediately advised Detective Converse. Moore’s vehicle was searched, leading to the discovery of crack cocaine. Moore was placed under arrest at 3:52 p.m. More contraband was later found on Moore’s person.
The court concluded that, based on the information developed and shared by the three detectives, when Detective Converse spotted the vehicle previously identified by Detective Kirkland, he had reasonable suspicion to stop Moore for driving on a suspended license. According to the unrefuted testimony of the three detectives, as well as their event log, Detective Kirkland radioed that he saw Moore driving a specific vehicle and that he believed Moore’s driving privileges were suspended. Detective Musgrave confirmed that licensure suspension. After receiving this information, Detective Converse saw Moore driving that same vehicle on a public highway. In the court’s view, this stop was not predicated on impermissible speculation, but on appropriate police work that confirmed Detective Kirkland’s suspicion about Moore’s license status.
Applying the constitutional yardstick of reasonable diligence, the court was satisfied that Detective Converse was reasonably diligent in conducting the records checks and ticket writing necessary to complete the traffic stop. Since the sniff and alert happened prior to the traffic stop being completed, it did not constitute a prolonged detention. In any event, inevitable discovery would have applied because once LE determined that driver was unlicensed, the vehicle could have been sniffed while LE was waiting for someone to arrive to move it, making discovery of the drugs inside inevitable.
Note: Great coordinated effort on the part of LE.
United States v. Tuschoff (Idaho 2021) 2021 U.S. Dist. LEXIS 47130
Prolonged Detention; Traffic Stop; Collective Knowledge Doctrine
During an investigation of drug trafficking, LE performed a traffic stop for tinted windows. While one officer attended to the duties of the traffic stop, handler had Tuschoff exit (there was some resistance and LE ultimately arrested Tuschoff for obstruction) and had his K9 perform a free air sniff on the vehicle. K9 alerted on the vehicle and contraband, as expected, was found. LE also confirmed that the window tint was illegal.
Tuschoff filed a motion to suppress in his criminal case. The government asserted that LE had probable cause for the stop and the search based on the collective knowledge doctrine. The collective knowledge doctrine has no requirement regarding the content of what must be shared, only that the officer with personal knowledge of facts giving rise to a reasonable suspicion communicates an appropriate order to another officer to conduct a stop, search, or arrest. Here, LE had been investigating Tuschoff for drug trafficking over the course of six months before he was arrested. One investigating LE officer observed Tuschoff on Interstate 84 heading west toward Boise and directed marked units to conduct a traffic stop. The investigating officer had personal knowledge of Tuschoff’s drug trafficking investigation which provided him, in turn, with reasonable suspicion that Tuschoff had been in Pocatello to buy drugs and was heading back to Boise to distribute the drugs. Because the investigator had personal knowledge of facts giving rise to a reasonable suspicion and communicated an appropriate order to the marked units to conduct a traffic stop, the collective knowledge doctrine is satisfied. Therefore, LE’s investigatory search of Tuschoff’s vehicle complied with the Fourth Amendment.
The court then addressed the prolonged detention claim. Tuschoff conceded the time in which LE was checking his driver information and preparing the tint meter check was reasonable. It was the tasks performed outside of the tint meter check that Tuschoff argues were unreasonable. While LE was performing tasks related to the window tint investigation, another officer walked up to Tuschoff’s car to inquire about illegal contraband. That second officer then asked Tuschoff to exit the car for safety, which led to an oral altercation. Tuschoff repeatedly asked why he needed to exit the vehicle. After multiple attempts to order Tuschoff out of the vehicle, including threatening to taze Tuschoff, the second officer motioned to the first officer for assistance. Tuschoff argues that the request for assistance delayed the traffic stop. The Government contends that it was Tuschoff’s own noncompliance that extended the traffic stop. The court held that a delay is not unreasonable when it is the suspect’s own actions that cause the delay and therefore there was no prolonged detention.
Even so, the court also held that there was reasonable suspicion based on the previous investigation and the collective knowledge doctrine. The investigating officer had personal knowledge of Tuschoff’s drug trafficking investigation which gave rise to a reasonable suspicion that he was engaged in criminal activity in Pocatello. Thus, the collective knowledge doctrine applies, and when the investigating officer ordered marked units to conduct a traffic stop, his knowledge and suspicion was imputed to them allowing them to properly conduct a dog sniff.
Note: Nothing really new here, but nice to have the court acknowledge the fact that defendant’s own actions have consequences.
State v. Brown (Ohio 2021) 2021-Ohio-753
Traffic Stop; Prolonged Detention
Defendant was stopped for speeding in a semi. LE smelled the raw odor of marijuana and also observed a small amount of marijuana. Defendant was removed and arrested (just having marijuana in the vehicle is a 24 hour out of service penalty). During the search of the vehicle (including the sleeper area), marijuana and a loaded gun were found. The court held that defendant’s drug-related criminal activity justified any prolonged detention. In addition, the odor and sight of marijuana provided LE with reasonable and articulable suspicion of criminal activity beyond that which prompted the traffic stop for speeding.
Note: Ohio allows medical marijuana and possession of less that 100 grams is considered a minor misdemeanor punishable by a fine.
United States v. Bustamonte (Idaho 2021) 2021 U.S. Dist. LEXIS 44595
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine; Reliability Foundation
During a drug trafficking investigation, LE determined that Bustamonte was involved in the scheme and marked units were asked to conduct a traffic stop. The investigating officer told the marked LE units about the drug trafficking investigation. While LE was engaged in the duties of the traffic stop, LE noticed that Bustamonte was becoming more nervous and suspicious and was moving items from the front seat to the rear seat. She was also drinking water excessively. A this point, LE started working on the citations. However, based on his observations, LE also then called for a K9 team. LE was still writing the citations when the K9 team arrived about 3 minutes later. LE met with the handler for about a minute, explaining his observations and what he had been told by the investigating officer. During this discussion, LE noticed that Bustamonte rolled up her window. This, to LE, meant that Bustamonte could be attempting to conceal contraband. LE also called the investigating officer and related he had stopped Bustamonte. Bustamonte got out of her vehicle and started questioning LE about the K9. She was told to stand in front of the cruiser while the K9 sniffed the car and alerted. This alert happened while LE was still completing the citations. Contraband was found in the vehicle and on Bustamonte’s person.
The court analyzed several areas of the stop. First, the conversation between LE and the handler was not an impermissible delay because it was an insignificant amount of time bringing the handler up to speed (it was about 1.25 minutes). Second, the court held that LE calling the investigating officer was also deminimus as the stop was quickly becoming a drug investigation. The court came to the same conclusion about the fact that Bustamonte’s actions in closing her door and rolling up the window as well as Bustamonte’s questions after exiting the car. The court also held that LE’s exit from his car, interrupting the citation writing was justified to keep an eye on Bustamonte while handler had K9 perform the sniff. Finally, the court found that, even though LE could have worked faster, there was no unreasonable delay.
The court then addressed reasonable suspicion. The court held that here, the collective knowledge doctrine applies because the investigator, an officer in possession of facts giving rise to a reasonable suspicion of criminal activity, asked a marked unit to conduct a traffic stop and provided that marked unit with that specific information regarding Bustamonte’s involvement in drug trafficking. In addition, LE noted that Bustamonte was overly nervous and fidgety and having a hard time staying on track. LE also took into account Bustamonte’s actions inside the car. Based on the totality of the circumstances, the court found that LE had reasonable suspicion to expand the traffic investigation into a drug investigation.
Bustamonte then challenged the K9’s alert, highlighting certain perceived inconsistencies with K9’s behavior such as the belief that handler “cued” K9 to alert on the truck or that some of his behaviors were more “dog-like” than investigatory. Bustamonte enlisted the testimony of an expert witness to support these propositions. The Court weighed the relevant testimony and found no evidence to support Bustamonte’s arguments. First, there is nothing to indicate that handler “cued” K9. The process of performing a dog sniff is fluid. The handler naturally has to indicate where he or she wants the dog to sniff. He or she also must communicate with the dog and provide necessary feedback. The Court has reviewed the available video and testimony and finds handler’s actions were all appropriate. The court also held that there is nothing to suggest K9’s alert in itself was unreliable. Handler testified that there was nothing unusual about K9’s alert in this situation. He testified that the alert the K9 gave that day was consistent with K9’s alert in prior trainings as well as in the field. This testimony aside, Bustamonte posits that some of the behaviors K9 exhibited were “natural” dog behaviors and not indicative of finding contraband. Nobody, including handler, denies the fact that K9, like all drug-detection dogs, exhibits dog-like behaviors that are not specific to drug detection. That said, the Court found handler’s interpretation of K9’s behavior more credible based on the testimonies given and the fact that the expert is unaffiliated and has never worked with this K9 before. Bustamonte also complained about the training records, but never challenged the certification of the K9. The court was satisfied that the certification was valid and controlling here.
Note: Nothing really new here, but it’s always interesting to see a defendant put on a full court press when challenging K9 evidence. It’s important to note that a good outcome was had here because handler had good records, the K9 was certified at the time and the handler did a good job in testifying.
Keenan v. Ahern (Virginia 2021) 2021 U.S. Dist. LEXIS 44515
Excessive Force; Qualified Immunity
Handler came across two people in a parked car. Both were ordered out. The driver got out but the passenger remained motionless in the passenger seat of the vehicle. Handler, who could see Keenan through the open driver’s door, issued “repeated verbal commands” to Keenan to exit the vehicle, but Keenan “was unconscious and unresponsive.” Despite having no reason to believe that Keenan presented a significant threat of death or serious physical injury to LE or others, or that Keenan would attempt to resist arrest or escape, “[handler] released his canine into the open driver’s door of the vehicle, where the canine walked across the seat and bit Keenan in the face and arm repeatedly.” Handler then walked around to the passenger side of the vehicle, opened the passenger door, and removed a now-conscious Keenan from the car, “with the canine still attached [to Keenan].” As a result of the encounter, Keenan sustained severe injuries and associated medical expenses.
The Court had little difficulty concluding that the conduct alleged amounts to excessive force in violation of the Fourth Amendment because releasing the K9 in this situation did not meet the Graham factors. The Court also held that qualified immunity was not available to handler because the state of the law has clearly established that releasing a K9 in this situation is not justified.
Note: This is a preliminary stage of the lawsuit and LE will have an opportunity to provide LE’s version of what happened here. However, it is clear that if the facts are similar to what Keenan had pled, this is not going to go well for LE.
United States v. Rose (Kentucky 2021) 2021 U.S. Dist. LEXIS 42872 (See also United States v. Rose 2021 U.S. Dist. LEXIS 41646 where the federal court adopted these findings)
Traffic Stop; Reliability Foundation; Probable Cause
A defendant charged with drug trafficking challenged the reliability foundation of the K9 involved in this case. Rose sold a CI some dope and was detained by LE and a K9 alerted on his car in which contraband including a gun was found. Defendant claimed that the K9 was not certified until 3 weeks after the sniff. The government responded that there was enough probable cause from the investigation prior to the traffic stop to search Rose’s car. The court found that there was ample probable cause to search the vehicle.
Note: The prosecution had to concede that the reliability foundation of the K9 was insufficient and therefore the K9’s alert could not be considered by the court in determining probable cause. Fortunately, in this situation, there already was probable cause to search prior to the K9 sniff. Not sure why this dog was in the field without certification, but this case is a good reminder to keep certification and training up to date. Also, the lack of certification could have been also justified by the government in showing that the K9 was reliable based on training and field records as certification is not required (it’s just the easiest way to show reliability). That may have been what dictated the government’s choice to show probable cause without the alert.
State v. Double (Ohio 2021) 2021-Ohio-632
Traffic Stop; Smell of Marijuana as Probable Cause
During a traffic stop, LE smelled a strong odor of raw marijuana. LE searched the car and noted that the smell was strong by the center console. LE used a pocket knife to take off the panel and found hashish. This compartment was a factory installed compartment to house the gearshift, etc. Court affirmed defendant’s conviction as the fact that the smell of marijuana is probable cause to search vehicle, including compartments.
Note: Ohio has legalized medical marijuana but not recreational marijuana.
Vette v. Sanders (10th Cir. 2021) 2021 U.S. App. LEXIS 6462
Excessive Force; Qualified Immunity
LE appeals the denial of its motion for summary judgement. Vette claimed that after fleeing in his car from an attempted traffic stop and further fleeing on foot into a field, he surrendered to LE. Vette claimed that Sanders then punched him, hit him in the face with a dog chain, and had his police dog attack him. Vette had teeth marks on his shoulder. Sanders claimed he should be entitled to qualified immunity (he made other claims that are not addressed here). The court analyzed the evidence presented by Vette under the Graham standard, finding that the first factor weighed in favor of LE because Vette was wanted for a felony. However, the other factors were found to weigh heavily in favor of Vette. Vette was bitten after he surrendered so he was not longer posing any sort of threat nor was he resisting or continuing to flee. Therefore, if Vette’s account were found to be true, it was objectively unreasonable to release the K9 at that time. Since this is a clearly established right (not to be physically attacked after surrender), qualified immunity was not available. The case was allowed to proceed forward to trial.
Note: LE did attempt to provide his side of the encounter but it was rejected at this stage under a procedural argument. LE will be able to counter Vette’s story with their information at a later stage.
United States v. $32,920.00 in United States Currency (South Carolina 2021) 2021 U.S. Dist. LEXIS 40793
Currency Sniff; Alert as Probable Cause
When claimants checked into their flight, they and their luggage smelled of marijuana. Airport security was notified. The bags were secured and sniffed by a K9 which alerted. Claimants were contacted and finally admitted to using marijuana. They consented to a search of the luggage and hidden in each bag in the lining was a large amount of currency. The court held that the government had a right to proceed to forfeit the currency as drug proceeds based on the totality of the circumstances, including the K9 alert.
Note: There were other factors the court took into account as well as the alert, including their goofy stories, where they were flying to on a one way ticket and the smell of marijuana detected by human LE.
State v. Arivett (Oregon 2021) 2021 Ore. App. LEXIS 284
Traffic Stop; Odor of Marijuana as Probable Cause
After being convicted of drug and child crimes, defendant appealed the denial of his motion to suppress. Defendant was a passenger in a rental car with Alabama license plates which was stopped for speeding. LE approached the car on the passenger’s side and advised them driver as to the reason for the stop and asked “Where you guys coming from today?” Driver explained that they were coming from Cave Junction. There was no luggage in the car and LE noted that they were nervous. LE noted a smell of marijuana and checked out both parties criminal backgrounds. Defendant only had a failure to appear. Driver admitted that her clothes smelled of marijuana because she had stayed with her cousin who works for a dispensary. Defendant denied any marijuana in the car. LE then searched the car based on the smell of marijuana as probable cause. The appellate court reversed the denial of the motion to dismiss because under the totality of the circumstances, the odor of marijuana, nervousness, travel location and lack of luggage was not enough to provide probable cause to search the vehicle.
Note: Oregon recently legalized all controlled substances. I would imagine we will be seeing some really interesting cases from now on.
Koley v. Williams (Arizona 2021) 2021 U.S. Dist. LEXIS 40149
Excessive Force; Bystander Liability
Inmate was instructed to put his shoes on and leave his cell as guards were performing a search for contraband. Inmate refused, so guards put him in hand restraints and started to walk him out. Inmate then “protested” by sitting down and refusing to walk. K9 was deployed and bit inmate, causing minor injuries that healed without complication.
Although many details of the incident are disputed, Inmate conceded (or didn’t dispute) several key facts, including that he was “struggling” with the guards right before handler released the dog, that handler was unaware inmate’s hands were restrained at the time the dog was released, that the unusual conditions on the prison yard on January 11, 2018 posed a particularly acute security risk (cells were being searched and this posed a risk since inmates were free range and unrestrained in the yard), and that handler immediately pulled away the dog upon realizing that Plaintiffs’ hands were restrained. Because there was no clearly established law in January 2018 prohibiting the deployment of a dog in the prison context under these (or analogous) circumstances, handler is entitled to qualified immunity on inmate’s excessive force claim. Meanwhile, inmate’s remaining claims fail on the merits—two bystander officers were too far away from the fracas to have any reasonable opportunity to intervene and inmate’s medical care claim is undeveloped (not pled appropriately).
Note: Pretrial discovery was important here, because the inmate made some damaging admissions that were used against him in this motion for summary judgement. Getting statements from inmate and other witnesses as soon as possible locks them into a story, even if they say they didn’t witness anything. If they later claim they were a witness, they can be impeached with their previous statement.
United States v. Mercado-Gracia (10th Cir.) 2021 U.S. App. LEXIS 6034 Traffic Stop; Reasonable Suspicion; Alert as Probable Cause; Consensual Encounter
Traffic stop for speeding on a drug corridor. Driver had convoluted story about the vehicle and his travel itinerary. LE completed the ticket and told driver he was free to go. As driver was walking back to his car, LE asked if he could ask driver questions. Driver engaged in conversation with LE and doubled down on the nonsensical explanations and displayed extreme nervousness. Consent was refused. LE then deployed K9 who alerted on the vehicle. Driver was arrested and told LE was going to apply for a search warrant. Driver then consented to a search.
Court held that this “ol’ highway patrol two-step” in this case was a consensual encounter. Driver was given his documents and told he was free to go and he demonstrated that understanding by walking back toward his car. LE then asked if he could ask questions and driver engaged with LE. The 8th Circuit has a bright line rule that driver’s documents have to be returned to him to transform a detention into a consensual encounter, but the court will also consider the following factors: the location of the encounter, particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officers; whether and for how long the officers retain the defendant’s personal effects such as tickets or identification; and whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent. The court held that the facts here indicated that a reasonable person would understand he had the right to refuse to answer questions and leave. In any event, the court also held that LE had developed additional reasonable suspicion that drug crimes were being committed which allowed for the additional time for the K9 to be deployed.
Note: A good result for LE. This is a fine line to walk but the highway patrol handled it well in this federal jurisdiction. This analysis will not hold true for all the states. Be sure you are up on the search and seizure laws in your state.
United States v. Solis (Kansas 2021) 2021 U.S. Dist. LEXIS 38134
Traffic Stop; Presence of Marijuana as Probable Cause
Traffic stop for traffic violation on a car that was seen leaving a drug house. Driver got out and hinked up trying to hide his roach. He ended up throwing it under the vehicle. Driver was taken into custody and the car was searched. Contraband was found. The court held that the the marijuana roach gave LE probable cause to search the vehicle.
Note: The court, interestingly, gave no credence to the testimony that LE smelled marijuana as they approached the vehicle because the court believed they were too far away. The presence of the roach was enough for probable cause, however. Kansas has not legalized marijuana.
