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 March 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 (A caution here: some cases are unpublished (Unpub.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.

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 MARCH 2022

FEDERAL

After the House passed a bill decriminalizing marijuana by removing it as a scheduled drug, the US Senate also introduced legislation to decriminalize marijuana. However, the bill is facing an uphill battle from GOP senators. However, the U.S. Senate unanimously passed a bipartisan bill to expedite research into potential medical uses of cannabis and its derivatives, including CBD.

In a new report from the National Organization for the Reform of Marijuana Laws, the group called on lawmakers at both the federal and state level to continue supporting the legalization of marijuana and for the federal government to deschedule cannabis as a controlled substance.

A member of Congress pitched a new bill on Capitol Hill to broaden veterans’ access to medical cannabis use.

STATES

Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming are the remaining states where possession can still fetch criminal charges and result in custody.

Kentucky‘s House of Representatives approved a medical marijuana legalization bill

An Alabama legislator unveiled a bill tightening restrictions on women purchasing medical marijuana.

A Hawaii lawmaker put forth a resolution seeking a guarantee that the Aloha State’s medical cannabis program would be safe from federal law enforcement.

Two Georgia smoke shops are accusing an Atlanta-area district attorney of wrongfully arresting and prosecuting sellers of hemp-derived products that contain the psychoactive compounds Delta-8 and Delta-10 despite claims that the two chemicals are legal under state and federal law.

Delaware lawmakers nixed a proposal to legalize adult-use cannabis despite notching majority support in the House of Representatives.

A legalization bill in Virginia was defeated.

Rhode Island legislators pitched a new proposal for legalizing adult-use.

Members of the South Dakota House of Representatives voted to defeat a bill to legalize adult-use cannabis, even as advocates are working to put the issue before voters in November.

INDEX OF CASES REVIEWED FROM MARCH 2022

People v. Sims (Illinois 2022) 2022 IL App (2d) 200391 – Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

United States v. Grant (Kentucky 2022) 2022 U.S. Dist. LEXIS 56679 – Traffic Stop; Alert as Probable Cause; Entry into Vehicle by K9

State v. Neyhard (Ohio 2022) 2022 Ohio App. LEXIS 987 – Traffic Stop; Prolonged Detention

Puskas v. Delaware County (Ohio 2022) 2022 U.S. Dist. LEXIS 52852 – Excessive Force; Qualified Immunity; Deployment vs. Bite as Result

United States v. $48,940 (Massachusetts 2022) 2022 U.S. Dist. LEXIS 51246 – Package/Luggage Sniff; Alert as Probable Cause;

United States v. McMahan (North Carolina 2022) 2022 U.S. Dist. LEXIS 51495 – Traffic Stop; Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause

State v. Lin (Idaho 2022) 2022 Ida. App. Unpub. LEXIS 90 – Traffic Stop; Prolonged Detention; Detention v. Arrest

State v. Meyer (Nebraska 2020) 2022 Neb. App. LEXIS 62 – LE Contact; Prolonged Detention

United States v. $332,057.00 (Arkansas 2022) 2022 U.S. Dist. LEXIS 49998 – Traffic Stop; Prolonged Detention

United States v. Sparks (Washington D.C. 2022) 2022 U.S. Dist. LEXIS 48891 – Detention; Luggage Sniff; Reasonable Suspicion

State v. Keil (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 161 – Traffic Stop; Reasonable Suspicion; Reliability Foundation

United States v. Approximately $13,205.54 (North Carolina 2022) 2022 U.S. Dist. LEXIS 46934 – Currency Sniff

United States v. Ruel (Nebraska 2022) 2022 U.S. Dist. LEXIS 48134 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

People v. Moua (California 2022) 2022 Cal. App. Unpub. LEXIS 1549 – Consensual Contact; Odor (Sight) of Marijuana as Probable Cause

United States v. Melendez (Utah 2022) 2022 U.S. Dist. LEXIS 47368 – Investigative Contact; Prolonged Detention

State v. Hayes (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 413 – Traffic Stop (Consensual Contact); Odor of Marijuana as Probable Cause

United States v. McAliley (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 44258 – Border Search; Traffic Stop; Alert as Probable Cause; Prolonged Detention; Collective Knowledge Doctrine

State v. Rule (Idaho 2022) 2022 Ida. App. Unpub. LEXIS 73 – Traffic Stop; Alert as Probable Cause; Prolonged Detention

Burgin v. Marshall (Alabama 2022) 2022 U.S. Dist. LEXIS 40746 – Tracking/Trailing Evidence

United States v. Jones (Kentucky 2022) 2022 U.S. Dist. LEXIS 41609 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Estes (Minnesota 2022) 2022 U.S. Dist. LEXIS 41951 – Traffic Stop; Odor of Marijuana as Probable Cause

State v. Campbell (Kansas 2022) 2022 Kan. App. Unpub. LEXIS 147 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Ortiz-Ortiz (New York 2022) 2022 U.S. Dist. LEXIS 36169 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Bastin (Indiana 2022) 2022 U.S. Dist. LEXIS 37615 – Traffic Stop; Prolonged Detention

CASES REVIEWED FROM MARCH 2022

People v. Sims (Illinois 2022) 2022 IL App (2d) 200391
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

LE observed a Dodge Charger with an out of state plate make an unsafe lane change and exit the freeway. LE stopped the Charger as it exited the freeway; the Charger kept going until it stopped at some gas pumps. Sims, the driver, provided an out of state license. LE noticed the odor of raw marijuana coming from the vehicle and at least 4 air fresheners. Sims accompanied LE back to the patrol vehicle while LE completed his investigation of the traffic violation (LE Terry frisked Sims and put him in the back of his patrol car. LE also moved both cars away from the gas pumps). When asked, Sims denied possessing marijuana. LE asked if it was possible someone had smoked before getting into the Charger and Sims agreed with that (Sims was alone at the time of the stop). Even though LE told Sims twice that he was only going to get a warning, Sims displayed increasing signs of nervousness.

Based on the odor, LE searched the Charger and found marijuana.

Sims filed a motion to suppress and claimed that LE did not smell either raw or burnt cannabis but, rather, used it as a subterfuge to search his vehicle after the stop’s purpose was complete. Sims claimed that LE’s actions unreasonably prolonged the detention, and thus, the search/seizure violated the constitution.

The appellate court disagreed that LE’s conduct showed that he did not smell an odor of raw cannabis. LE explained that his custom of having drivers sit in his squad car while he processes tickets is to ensure that suspects do not attempt to flee. It is well established that following a lawful traffic stop, police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop without violating the protections of the fourth amendment.

The court also disagreed with Sims that the video evidence established that LE was incredible (LE testified that he smelled the odor of raw marijuana but told Sims that he smelled burnt marijuana).

Here, Sims contended that LE’s conduct does not support his assertion that he actually smelled the odor of raw cannabis. Had LE smelled marijuana emanating from the vehicle as he claimed, he would have immediately either searched the vehicle or questioned defendant about whether he had smoked cannabis in the vehicle. Instead, LE asked Sims questions about a myriad of unrelated topics. Sims claimed that this calls into question LE’s testimony that he smelled the odor of raw cannabis. The appellate court disagreed.

There was nothing inherently incredible about LE’s explanation concerning his practice of having suspects sit in the front seat of his squad car, and no other circumstances of the encounter reasonably called his credibility into doubt. LE reasonably explained why he did not immediately announce to Sims that he smelled the odor of cannabis and then search the vehicle. The appellate court concluded that all of the facts in the case did not demonstrate that LE was not credible (LE’s testimony was believed by the appellate court as there was a stipulation that LE had sufficient training and experience to recognize the odor of marijuana).

Once the court determined that LE was credible when testifying he smelled marijuana, the court then addressed Sims’ argument that the odor of raw cannabis by itself did not give rise to probable cause to search the vehicle. At the time of the stop—2018—marijuana was not inherently “contraband,” Sims contended, and thus, the mere odor of raw marijuana could not give rise to probable cause.

Illinois had decriminalized possession of less than 10 grams of marijuana for any purpose and defined such possession as a civil law violation. This meant, according to Sims, that possession of marijuana was not an inherently criminal act and the mere smell of marijuana could not give rise to probable cause.

However, the court noted that in 2018, possession of any amount of cannabis remained illegal (decriminalization is not synonymous with legalization). The odor of cannabis was indicative of criminal activity, notwithstanding the legislature’s decriminalization of the possession of a small amount of marijuana.

The appellate court held that the trial court did not err in finding credible LE’s testimony that he smelled raw cannabis emanating from defendant’s vehicle, and further concluded that the odor of raw cannabis emanating from the vehicle when LE first approached gave rise to probable cause to search the vehicle. Thus, they did not reach defendant’s argument that LE unreasonably prolonged the stop.

The denial of the motion to suppress was upheld.

Note: Illinois passed legalization legislation in 2020, making the cultivation, trafficking, sale or possession of a small amount of marijuana legal. Illinois permits possession and cultivation of medical marijuana as well.

United States v. Grant (Kentucky 2022) 2022 U.S. Dist. LEXIS 56679
Traffic Stop; Alert as Probable Cause; Entry into Vehicle by K9

A package containing 26 pounds of methamphetamine was intercepted by LE. The return address was fictitious but underneath was a label with a Kentucky address. Another package was intercepted with the Kentucky address. LE conducted surveillance on the address and saw Grant and a female enter an apartment at that address and then come out with a bag which Grant put in the trunk of his vehicle. Grant then walked to the complex’s mail facility. The female drove the car to meet Grant. Grant used a code to open the door of a storage container. Grant removed a box, sat it down, and walked out of the mail room and looked around. When Grant saw the vehicle, he picked up the box and carried it toward the vehicle. Grant appeared to move other items in the trunk and then placed the box into the trunk of the vehicle.

LE followed the vehicle and observed overly tinted windows and reckless driving, endangering other motorists. Marked units were notified and made a traffic stop on the vehicle. Grant immediately got out of the passenger side, walked past one cruiser and toward another one. He was quickly handcuffed and detained behind a cruiser.

Meanwhile, other LE positioned cruisers to block any forward motion by the still occupied vehicle. Female was ordered out at gunpoint, but LE quickly deescalated and had female sit on the curb. At one point, female went back to the vehicle, but the driver’s side door remained open.

LE told Grant and the female that they believed the vehicle to be stolen (so they would not need to give up any information about the continuing drug investigation and to explain the felony stop procedures). The occupants gave different stories about who owned the car. Female denied consent to search. Handler (already on scene) had K9 sniff the vehicle (Grant became agitated at this point). The K9 briefly entered through the open driver’s side door and alerted on the center console. K9 did not alert anywhere else.

LE searched the vehicle based on the alert. In the trunk was a box containing 40 pounds of methamphetamine.

The court first addressed whether LE had a legal basis to stop the vehicle. The court held that the reckless driving alone was sufficient to stop the vehicle, even if LE told the parties a false reason for the stop. In addition, the court held there was no prolongation because the K9 team was on scene and did not extend the traffic investigation. The court went on to hold that once a properly trained and reliable K9 alerts, LE has sufficient probable cause to search the entire car, including containers.

Grant complained that the K9 did not alert until it entered the vehicle which was not permitted. The court held that since LE had no obligation to shut a door that was left open by the driver (particularly a driver who had opportunities to close the door), the entry by the K9 was acceptable.

Note: The court stated that the K9 was reliable and properly trained and Grant did not challenge that finding. The court also stated that since there was no prolongation, they did not have to rule on whether the drug investigation gave LE additional reasonable suspicion to extend the traffic stop.

State v. Harning (Montana 2022) 2022 MT 61
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

Harning was on his way to an art show when he was pulled over by LE for speeding. LE noticed that there were several sealed cardboard boxes in the bed of the truck. Harning, the driver, refused to lower his window any further than 3-4 inches. In spite of that, LE smelled the odor of marijuana. LE characterized Harning as evasive when LE asked why he felt uncomfortable about rolling the window down. Harning provided the appropriate documents. LE then asked if Harning had a medical marijuana card. Harning said no, but admitted to smoking earlier in a location about 80 miles away. Harning said “I have no marijuana on me”, in response to LE asking if there was any marijuana in the vehicle. LE then returned to his patrol vehicle and called for back up, a standard procedure when DUI FSTs are needed. LE completed the traffic citation and then told Harning he was going to conduct a DUI investigation based on the admission of use and the smell. A Terry frisk revealed nothing. LE concluded that Harning was not under the influence.

Harning again asked about the marijuana smell. Harning again denied possession of marijuana and asked to leave. LE said he was not free to leave, but he was not under arrest. LE then called for a K9 team. About 17 minutes later, the K9 team arrived and K9 alerted. A search warrant was obtained and a marijuana pipe and a grinder were found in the vehicle.

Harning filed a motion to suppress based on prolonged detention. The government’s position was that LE had particularized suspicion to make the initial traffic stop when he observed Harning speeding. Thereafter, the odor of marijuana and Harning’s admission to using marijuana provided particularized suspicion for a DUI investigation. Finally, the government argues that, under the totality of circumstances, particularized suspicion existed to support a canine search.

The appellate court held that LE did not have specific, articulable facts supporting a particularized suspicion that Harning was engaged in drug activity. While the stop for speeding was appropriate, the additional information (with the possible exception of the window issue) did not rise to the level of reasonable suspicion that Harning was involved in drug crime. The court addressed the odor of marijuana in this case. Here, while the smell of marijuana was present, the additional information of Harning having smoked it earlier justified the DUI investigation. However, that investigation concluded that Harning was not impaired. This ended the investigation into all the crimes for which LE had reasonable suspicion. At that point, calling for the K9 team and waiting for them impermissibly extended the investigation and the items found in the car were suppressed.

Note: The appellate court addressed the odor issue by citing a Prohibition era case: “[O]fficers may rely on a distinctive odor as a physical fact indicative of a possible crime; but its presence alone does not strip [an individual] of constitutional guarantees against unreasonable search.” In addition, because Harning admitted to smoking earlier (outside of the vehicle) and he was not under the influence, and because LE testified that the smell of marijuana did not factor into his analysis of additional reasonable suspicion (he depended on his observations of Harning alone), the court did further address the odor of marijuana as probable cause. Finally, the court was unimpressed with LE’s testimony, discounting it because LE was only on the job for a year prior to the stop.

A lot went astray here. First, when smelling marijuana, make a record of that smell in your report: is is fresh or burnt? overwhelming or faint? etc. Then, when Harning said, “I don’t have any marijuana on me,” this should have been followed up with “What about in the vehicle?” since the question was initially posed that way. In addition, this LE methodically completed each step of the investigation before going on to the next step. While this is a good strategy to make sure you don’t miss anything, in this context, it would have been better to call for a K9 team immediately (at that same time as back up for example) so that the investigations could run parallel rather than wait until after the traffic and DUI investigations were completed.

State v. Neyhard (Ohio 2022) 2022 Ohio App. LEXIS 987
Traffic Stop; Prolonged Detention

LE stopped a truck seen leaving a suspected drug house. LE called for back up and contacted Neyhard, the driver. LE asked Neyhard if he had any illegal items in the vehicle and told him he would be conducting a free air sniff with his K9 partner.

Back arrived a few minutes later, so LE had K9 sniff the vehicle. K9 alerted, so Neyhard was removed from the vehicle and the vehicle was searched. Found was two roaches and a loaded pistol.

The court found that LE stopped Neyhard at a few seconds after 5:00 p.m. At 5:04 p.m., LE ran Neyhard’s license through dispatch and called for backup, which arrived three minutes later. The free air sniff began at 5:10. The video and testimony do not affirmatively demonstrate that the officer was awaiting any information from dispatch necessary to finishing the tasks reasonably related to the purpose of the stop. In fact, it showed that LE was engaging in small talk with Neyhard. Therefore, the stop was prolonged. Since there was no additional reasonable suspicion developed, the stop was impermissibly prolonged for the K9 sniff. The motion to suppress was denied.

Note: Once back up arrived, the prudent move would have been for LE to hand over the traffic violation and do the sniff while the back up officer was completing the citation. This would have eliminated the prolonged detention issue and the motion to suppress would have been denied.

Putman v. Harris (Virginia 2022) 2022 U.S. Dist. LEXIS 55404
Excessive Force; Mental Health Detention;

LE was called to the Putnam house by Putnam’s wife who said her husband was texting her that he was going to kill himself. Putnam had access to guns and, in one of the texts, Putnam said he had the gun in his mouth. He texted good bye after that.

Wife met with LE and could not determine if any of Putnam’s guns were missing. She gave consent to LE to search the house and the large wooded property for Putnam. The search of the house revealed a rifle in the attic but no Putnam. About this time, the K9 team arrived. Handler deployed the K9 on the property to locate Putnam. The K9 caught a scent and guided handler and another officer directly to Putman. Putnam was lying on his back in a large, cratered-out hole at the base of an uprooted tree, with his hands crossed over his chest. The hole was approximately the length of Putman with room on either end, and wide enough to fit his body; it appeared to be about a foot or so deep. No firearms were seen. Handler, who got to Putman first, immediately tightened the leash on the K9 to restrain him. As they approached the edge of the hole, Putman had his eyes open and was just looking at the K9. Putman claimed that he was asleep and woke up to the K9 standing over him and LE pointing his gun at him and yelling at him to stand up. LE also smelled alcohol and that there were empty beer cans near Putman. A few seconds later, the second officer, who was trailing behind Harris, approached with his gun drawn and immediately ordered Putman to get his hands up.

Then several minutes of orders and Putnam refusing or not completely complying occurred. Putnam stood up but was demanding to know what LE was doing on his property and what he did wrong. Handler gave him several K9 warnings. After a couple minutes of this, handler ordered K9 to bite. The K9 missed, only biting Putnam’s clothes. Handler followed behind the K9 and pushed Putnam to the ground on his stomach. The other officer held Putnam down and handler securing the K9. Putnam was still struggling, trying to get up. Other officer then tased Putnam. Putnam was writhing on the ground and flipped over onto his back. During the commotion, K9 re-engaged and bit Putnam on the arm. Putnam gave up, was turned back on his stomach and handcuffed. As soon as Putnam was handcuffed, the K9 was released.

The court first found that the information from the wife was sufficient for LE to locate, detain and investigate Putnam. When LE found Putnam, he was acting strangely, lying in what appeared to be a shallow grave. He was also combative evasive and uncooperative, which coroborated that he could be mentally ill.

The court then went on to analyze the rest of the encounter via the factors in Graham v. Connor. The court found that the first factor favored Putnam; there was no indication that Putnam committed a crime. The second and third factors, however, appeared to justify some use of force. LE was unable to determine whether Putnam was in possession of firearms and the fact that Putnam mentioned firearms (unprompted, he said he didn’t have any) was concerning. Putnam refused to comply and continued to resist when initially detained (after handler pushed him down). Only after he had been tased and bit (which appeared to have happened almost simultaneously), did he cooperate with LE. On the other hand, Putnam was not threatening LE. In addition, handler ordered his K9 to bite Putman after a mere two minutes of verbal instruction, without any particular action by Putman shifting the dynamics or escalating the situation into an immediate threat. There is no question that Putman was refusing to comply with the commands to turn around. However, the mere refusal to cooperate, without more, is not a direct act of resistance. Even if an individual is resisting seizure, and some use of force is justified, the degree must be reasonably calculated either to prevent flight or similarly stymie the level-of-resistance from escalating. Putman was not attempting to flee or physically resisting when Harris released the dog. Rather, he was standing with his hands outstretched, repeating his demands to see a warrant, as he had done for the past minute. Putman’s “refus[al] to comply with shouted orders” to turn around, “while cause for some concern, do not import much danger or urgency into a situation that was, in effect, a static impasse.” Finally, Putnam suffered a severe injury (the main artery in the arm had to be replaced by a leg vein from Putnam’s leg). Therefore, since this was a motion for summary judgement, the court found that Putnam had raised enough of a conflict in the evidence such that a jury would need to decide the issue.

The court then addressed qualified immunity. The court held that it was clearly established at the time of violation that the use of a K9-a level of force that risks serious injury-on an individual with mental health issues without evidence that he was actively resisting is an unconstitutional use of force. therefore, because the court found that because the facts are in dispute as to whether handler had a reasonable belief that Putman may have been armed, the defense of qualified immunity cannot be resolved at this stage in the litigation.

Note: Interestingly, the officer with the taser was dismissed out of the suit. This is because the complaint did not allege the facts against that officer sufficiently. I think that had Putnam complained that the tasing officer also used excessive force, this would allow him to put in front of the jury that not only was he tased, but he was bitten at almost the same time. This would have made a stronger excessive force case, but as of this decision, really the only issue is whether Putnam was armed or LE reasonably believed he was armed. The other take away from this case is that the court identified the bite of a K9 as a level of force that risks serious injury. This language is perilously close to the definition of deadly force. Today’s LE environment and the impression that the public has of LE right now means we can’t risk having language out there like this. Deployment must be assessed at every juncture.

Puskas v. Delaware County (Ohio 2022) 2022 U.S. Dist. LEXIS 52852
Excessive Force; Qualified Immunity; Deployment vs. Bite as Result

A man was reported to LE by his wife for acting abnormally. Her complaints included that he was throwing things around, that he was tearing up the house, cut a window open, and threatening her with guns and knives. The wife told the dispatcher that there were “tremendous” guns in the house and that he threatened to turn her into an ashtray. She told the dispatcher, “He’s going to kill me.” The wife then fled to the neighbor’s property.

LE arrived and found Puskas (the husband) in the yard with items strewn about and holding a rifle. Before LE got out of the cruiser, Puskas put the rifle on the ground. He was ordered to get on the ground, but he ignored that and walked toward the house. He stopped by a bag and pulled out a shotgun. LE retreated to the cruiser. Puskas yelled, “Yeah, you better run,” and threw the shotgun to the ground. LE radio’d for help and said there were multiple guns and that Puskas was armed with a shotgun. LE and back up attempted communication, but Puskas continued to disregard LE orders. The K9 team arrived and ordered Puskas to walk toward LE and gave a K9 warning. Puskas turned and ran into the house. Since LE believed there were firearms in the house, the K9 was deployed. Puskas pulled a pistol and pointed it at LE and Puskas was shot and killed before the K9 made contact. Puskas’ wife filed wrongful death and section 1983 claims.

The appellate court stated that the Sixth Circuit has treated an officer’s decision to release a K9 as an independent use of force separate from any physical contact the dog ultimately makes. Accordingly, the appellate court analyzed the decision to release K9 as a use of force.

When K9 was released to apprehend Puskas, LE knew that: Puskas was suspected of domestic violence, had threatened his wife with “guns and knives,” and had twice wielded firearms in the presence of LE. Puskas had been acting erratically during his encounter with LE, and they saw that he had ready access to firearms in the yard. Puskas had refused to surrender and resisted attempts at apprehension even after he was warned that he would be bit if he refused to comply. When Puskas turned and ran toward his house where LE believed more guns were located, they reasonably believed that he posed an imminent threat to the personal safety of everyone on the scene. In this situation, the K9 deployment was objectively reasonable.

In an effort to avoid the application of qualified immunity, wife offers three arguments — none of which were successful. First, she complained that there was no K9 warning given, which was belied by the video footage. In addition, the court held that even if a warning wasn’t given, it would have been excused in this situation given the volatile situation and Puskas’s access to firearms in the yard.

Second, wife suggests that LE could have tased Puskas prior to K9’s release when he was the only officer on the scene. However, the court held that the Fourth Amendment does not require LE to use the best technique available as long as their method is reasonable under the circumstances. Puskas was erratic and refused to comply with LE’s instructions from the outset, so it was reasonable that Deputy Swick LE first try nonconfrontational methods. Using a taser soon after arriving on site could have escalated the situation when there was still a chance of peaceful resolution. LE’s decision to forgo tasering for the possibility of a nonviolent resolution was appropriate.

Lastly, wife argues that LE were not in immediate danger when K9 was released because Puskas was unarmed at that time, he was not threatening them, and he was having a mental health crisis. But, the court held, these arguments ignore that Mr. Puskas had ready access to firearms in the yard, he had showed a willingness to wield those firearms, and he was running toward the house where LE believed more weapons were stored. The state of Puskas’s mental health was an unfortunate component of these tragic events, but LE had to deal with the threat as they faced it.

Deploying the K9 was an objectively reasonable use of force, and LE is entitled to qualified immunity for Cash’s release.

Note: As always, encounters like this one are tragic. However, when confronted with deadly force, the use of a K9 is merited, whatever the result. This case also demonstrates that courts are more and more considering the deployment of a K9 at every stage of the encounter. Here, the K9 didn’t have the chance to engage, but the court determined just the deployment was a use of force that had to be addressed using the Graham factors.

United States v. $48,940 (Massachusetts 2022) 2022 U.S. Dist. LEXIS 51246
Package/Luggage Sniff; Alert as Probable Cause;

At an airport, a task force between the DEA and the Massachusetts State Police (MSP) were on the lookout for drug trafficking and bulk currency possession from drug trafficking. Barosy booked a one way ticket from Boston to LA less than 24 hours before departure, an indication that Barosy was in possession of drugs or currency used in drug trafficking. Barosy was known to the Task Force as someone associated with a known drug trafficker (Steve). Barosy had been arrested in the past for drug charges, although never convicted. Surveillence was set up, but Barosy cancelled by phone at the time of boarding and rebooked for the next day. Barosy arrived for that flight, checked a bag and had a carryon. The checked bag was retrieved and Barosy was contacted at the departure gate. After ID’ing themselves, Barosy consented to talk about his travel plans. LE told him he was not detained and LE made sure not to crowd him. Barosy said he was going to look at property for his business partner, Steve. When LE used the last name of the drug trafficker, Barosy said he wanted to talk to his lawyer and stepped away to make a phone call. He came back to LE and LE told him they were going to detain his two bags and obtain a search warrant for them. Barosy was allowed to either make his flight to LA or wait for the MSP to obtain a warrant for the luggage. Since he could not decide, LE decided to go the search warrant route and took ahold of the backpack on Barosy’s shoulder. He flinched and pulled away. LE told him that he couldn’t interfere with the seizure of the bags. He relented but asked for his keys and indicated what pocket they were in. LE retrieved them and a large bundle of cash was revealed. The keys were given to Barosy. When Barosy asked for a receipt, LE said they had them at MSP barracks a short distance from the airport. Barosy consented to travelling with LE and given a receipt about 20 minutes later. Barosy left with the receipt.

A drug trained K9 was brought in to sniff both bags. It took several hours to get the team to the location. K9 alerted on both. This information was included in the search warrant affidavit as well as the information about Barosy’s travel arrangements, previous association with Steve, Barosy’s drug-related criminal charges, and Barosy’s conduct during the interview by law enforcement at his departure gate. The search warrant was granted and the bag contained the captioned currency, cell phones and a credit card reading device.

Barosy complained that LE did not have reasonable suspicion to seize his bags. The court held that at the time LE seized Barosy’s bags for further investigation, LE knew that (1) Barosy’s flight reservations and appearance at the airport fit the known pattern of narcotics and currency couriers—Barosy booked his flight to a known drug source city last minute, cancelled last minute, rebooked for early the next morning, and arrived at the airport just fifteen minutes before his departure time; (2) Barosy had been charged with drug-related offenses in the past; and (3) he was associated with the email address of Steve two years prior. Barosy’s behavior during the encounter with LE only validated that suspicion. Barosy could not provide basic details about his travel plans or the last name of his purported business partner (although he clearly had a reaction to LE using the last name). Based on these facts—viewed in their totality—LE had particular, articulable reason to suspect that Barosy’s bags contained evidence of drug trafficking that justified detaining the bags to further investigate with a sniff test.

Barosy then claimed that the detention of the bags was unlawfully prolonged: 1) it took too long for the K9 to arrive and 2) They did not have a property receipt with them, so Barosy was forced to go to the barracks with LE and as a result, miss his flight.

The court held that the above complaints were irrelevant because LE had probable cause the minute they opened the back pack to look for keys and saw a large amount of currency. The fact that Barosy had concealed a very large amount of cash in his carry-on bag taken together with the other facts LE had justifying their reasonable suspicion-the information about Barosy’s travel arrangements, his previous association with Steve, his drug-related criminal charges, and his conduct during the interview by LE at his departure gate-created probable cause that Barosy had evidence of a drug-related crime in his luggage. This allowed LE to detain his bags for purposes of the sniff test and later search regardless of how long it took for the sniff test to occur or that the officers did not have a property receipt on hand at the departure gate.

Note: Remember that borders and ports of entry as well as the Border Patrol have a lessened burden of proof to seize, detain and search (which was why they were able to detain the checked bag). However, LE in this case developed reasonable suspicion based on the facts.

United States v. McMahan (North Carolina 2022) 2022 U.S. Dist. LEXIS 51495
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause

During a multiagency investigation focused on methamphetamine trafficking, LE determined that Ibarra and others were suspected suppliers. McMahon was a suspected trafficker or associate of the suspected traffickers. A CI contacted LE and said that a supplier would be travelling to their jurisdiction to pick up several ounces of meth from Ibarra. The CI knew the travel plans, including the residence that was the starting place, where the exchange was supposed to be made (motel) and then back to the original start. CI also described the vehicle as an Acura with temporary plates.

LE was able to locate the Acura in the parking lot for the motel and put it under surveillance. A Mustang drove by the Acura slowly. About 45 minutes later, McMahon exited the motel, got into the vehicle and “messed around” for a couple of minutes then return to the motel.

About 2 hours later, McMahon got into his car and drove to a convenience store and meth with two women whose car had two flat tires. He brought them back to the motel and he was seen milling about the parking lot with Ibarra and another suspected trafficker.

About an hour later, the Mustang left the parking lot followed by the Acura. 20 minutes later, the cars returned. Later, when the Acura left with McMahon and 3 others including a suspected trafficker. LE lost them in traffic. LE then contacted the CI and were told that one of the traffickers was enroute to home base in a Kia. LE went back to the starting residence and saw McMahon there with suspected traffickers. McMahon finally left in his Acura with suspected traffickers. Ultimately, McMahon was pulled over for speeding. LE obtained paperwork from the driver, Douville, and McMahon who was in the back seat. LE called the temporary tag in and recognized occupants as being involved in drug crimes. LE began running warrant checks and occupants were removed and Terry frisked. During this time, a K9 sniffed the vehicle and alerted.

The court initially addressed whether the Acura was stopped for a criminal drug investigation or a traffic investigation. However, because the stop for speeding was valid, the court indicated it did not need to decide whether the stop was for drug trafficking as well.

The court moved on to whether the stop was impermissibly prolonged. Given the ongoing investigation, the driver’s extreme nervousness (shaking uncontrollably) and that the occupants of the vehicle were involved in drug crimes, LE had sufficient reasonable suspicion to extend the stop to include a K9 sniff.

In addition, the court held that the evidence showed that the K9 sniff took place while other tasks associated with the speeding investigation were being diligently pursued.

Note: This case boils down to reasonable suspicion was based on a traffic violation as well as the ongoing drug trafficking investigation which allowed for the K9 sniff. In addition, the sniff took place while the traffic investigation was being pursued. Both situations allowed for the K9 sniff which then provided probable cause for the search of the vehicle.

State v. Lin (Idaho 2022) 2022 Ida. App. Unpub. LEXIS 90
Traffic Stop; Prolonged Detention; Detention v. Arrest

LE/handler stopped Lin for tinted windows and a lane violation. Lin was nervous and shaking. He claimed to have purchased the vehicle two days prior but abruptly stopped and said, “I mean recently.” He was traveling from Minnesota to Seattle to visit friends. When LE/handler was using the tint meter, LE/handler could see Lin texting on his phone, taking care to hide what he was typing from LE/handler. Back up arrived during the tint measuring, so LE/handler turned over the ticket investigation to back up. LE/handler then had Lin exit so he could have his K9 sniff the vehicle. Lin complied and LE/handler asked back up (who was waiting on the records check) to seat Lin in his vehicle. LE/handler then retrieved his K9 who sniffed the vehicle and alerted. Marijuana was found.

Lin initially complained that when he was handcuffed and put in a LE vehicle, he was arrested without probable cause. LE indicated that these measures were taken to promote officer safety and prevent flight. The court held that even though there were a total of three officers on scene, these measures were not unreasonable under the circumstances. Both of the officers at the scene when Lin was handcuffed were pursuing tasks related to the traffic stop and could not divert their attention to Lin without prolonging the stop. LE/handler realized that the second officer was attending to processing Lin’s paperwork and LE/handler would not be able to attend to Lin as he ran his drug detection K9 around the truck. Lin had exited his vehicle and was now standing on the shoulder of a busy interstate highway. While a third officer arrived on the scene at some point, it is unclear when he arrived and it appears that Lin was at least in handcuffs before his arrival, if not in the back of the patrol vehicle. Further, while Lin was cooperative, he was also evasive and furtive, preventing LE from seeing his phone and asking for an attorney unprompted when asked about the cargo in the bed of the truck. Finally, the court found that the time Lin was handcuffed was about 6 minutes, a reasonable time to complete the LE objectives. Therefore, there was no de-facto arrest as LE acted reasonably to diligently pursue the investigation.

Note: While this court did not reach the issue of the K9’s alert, it is a good reminder to make sure you have reasonable circumstances to handcuff and detain a suspect. If you turn a reasonable suspicion detention into an arrest without probable cause for said arrest, you will end up losing your evidence.

State v. Meyer (Nebraska 2020) 2022 Neb. App. LEXIS 62
LE Contact; Prolonged Detention;

LE received information that people were going through dumpsters on private property. LE arrived about 2:39 am and saw some people in a vehicle parked in front of a private residence. LE pulled up behind the car and contacted the occupants. The occupants acknowledged that they had been going through the dumpster on private property. LE told them this was a trespass and obtained their information. The driver was a female and the passenger was Meyer, with whom LE was familiar from a  previously conducted a drug-related investigation. LE returned to his cruiser to call in information and at the same time, requested a K9 team to respond. While LE was working on the data check, K9 team arrived, had the occupants exit and the K9 was deployed for a sniff and alerted to the vehicle. LE went back to the occupants to talk to them about the trespass and to inform them that the K9 had alerted to the vehicle. The car was searched and methamphetamine along with paraphernalia was found.

The court held that LE’s response to the trespassing complaint was appropriate as LE had ad reasonable suspicion to conduct a brief, non-intrusive detention of Meyer and the passenger for preliminary questioning in connection with the reported incident (similar to a Terry stop).

The court also held that the stop was not unduly prolonged by the K9 sniff and alert.

The court also held there was no prolonged detention because the call for the K9 and the actions of the K9 team did not impact the trespassing investigation and were, in fact, completed before the trespassing investigation was completed.

Note: Nothing really new here, but a great example of how a sniff can be incorporated into an investigation for unrelated crimes.

United States v. $332,057.00 (Arkansas 2022) 2022 U.S. Dist. LEXIS 49998
Traffic Stop; Prolonged Detention

Traffic stop on a rented vehicle for lane violation. Driver was the husband of the passenger. Driver was physically shaking as he handed appropriate documents to LE upon request. Driver was asked to come back to the cruiser while LE investigated the occupants. After some discussion about their planned travels, LE said he was not going to issue a ticket. LE did find out that driver had a history of a marijuana charge. Driver denied having contraband. LE then went to speak to the passenger. She had the same story but was cutting off LE to answer and volunteered unnecessary information. LE returned to his cruiser to run passenger’s information. LE then asked driver for permission to search the vehicle. Driver refused, becoming more rigid and emotional. LE then told driver he was calling for a K9 team. While waiting, LE continued to question driver about his criminal history. When the K9 team arrived (about 31 minutes into the stop and about 18 after being called), passenger was removed. The sniff resulted in an alert. There was a locked backpack in the car. LE found a large amount of cash. There was more cash in other luggage. Driver owned up to delivering it for someone, but did not say who.

The court held that the traffic stop was valid for lane violation (partly because driver basically admitted it by saying he was swerving because he was sneezing).

Moving to the issue of prolonged detention, the court held that viewed in the totality of the circumstances, LE had stated specific, articulable facts sufficient to establish reasonable suspicion, allowing the extension of the traffic stop until a drug dog could be brought to the scene. Even under the occupant’s timeline, LE initiated the stop; asked driver to exit the vehicle and respond to questions in the patrol car; ran a background check of driver; spoke to the passenger; ran a background check on passenger; and then driver declined consent to search the vehicle, at which time LE called for the drug dog. The totality of the circumstances observed and information gathered by LE during these actions established reasonable suspicion to allow the extension of the stop. Therefore, the Court found both that LE had reasonable suspicion to extend the stop to allow time for a drug dog to arrive on the scene and that the stop was not unreasonably extended beyond the initial traffic stop. but it does show the wide range of facts that courts have accepted as reasonable suspicion of other crimes justifying prolonging a detention.

Note: There were other issues raised in this appeal but are not relevant to our discussion here. Otherwise, nothing really new, but it does show the wide range of facts that courts have accepted as reasonable suspicion of other crimes justifying prolonging a detention. 

United States v. Sparks (Washington D.C. 2022) 2022 U.S. Dist. LEXIS 48891
Detention; Luggage Sniff; Reasonable Suspicion

LE was patrolling the Amtrak station and were in full uniform and accompanied by a K9 trained to sniff for narcotics. LE approached Sparks and Luna (Sparks’ companion) and asked to see their tickets and ID. Luna initially kept walking, but LE “call[ed] her back” to conduct the ticket check. Both produced the full pdf ticket upon LE’s request, and both individuals provided their identification.

Next, LE allegedly asked Sparks and Luna whether they were carrying contraband such as drugs, bombs, or large sums of money and they stated that they were not. LE then instructed them to place their bags on the ground for a K9 sniff. They complied, and the body worn camera footage shows K9 sniffing the luggage and alerting on the purse that had been in Luna’s possession. Following K9’s alert on the purse, LE placed Luna in handcuffs and at the same time directed his partner to handcuff Sparks. After she was handcuffed and was told that she “may or may not get arrested” “depending on what it is,” Luna stated that she had “a pipe” and “maybe a gram of coke” in her purse and asked whether that would get her arrested.

While both Sparks and Luna were handcuffed on the platform, K9 deployed on their belongings again and K9 then alerted on Luna’s jacket.

The appellate court first found that there was no issue with the ticket check, calling it consensual and that it did not implicate the Fourth Amendment. However, as a factual matter, there were no credible, objective, articulable facts alleged that allowed LE to detain Sparks’ and Luna’s luggage and subject them to a K9 sniff. A K9 sniff that does not interfere with an individual’s personal use and control over their belongings—such as when the luggage is checked or the sniff takes place outside of the owner’s presence—does not violate the owner’s possessory or privacy interests. That is not what happened here. Sparks and Luna’s privacy interests were violated by LE.

Note: There was no articulated reason for the stop and no information was presented that would indicate there was reasonable suspicion of anything that would justify a stop and a directive to place the luggage in a location so that the K9 could sniff it. Therefore, this motion to suppress was granted.

State v. Keil (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 161
Traffic Stop; Reasonable Suspicion; Reliability Foundation

During a traffic stop, LE officer approached the vehicle and observed that the driver, Keil, had “sunken facial features” and “rapid movements,” which LE believed to be common with current or past substance use. LE also observed that various parts of the vehicle’s panels were pulled out or removed and that the radio was partially removed from the dashboard, which he thought could be signs of concealing controlled substances. LE asked Keil to step out of the vehicle to question him about his use of alcohol and controlled substances. Keil complied and the officer noticed that Keil had “bloodshot or red eyes.” During a DUI investigation, Keil admitted to having used methamphetamine within the last 36 hours. He also failed FSTs. Keil refused consent. LE called for back up and told Keil that he was going run his K9 around Keil’s car. The K9 alerted on the car. Methamphetamine was found.

Keil did not challenge the initial stop but contended that LE lacked reasonable suspicion to expand the scope of the intitial stop to conduct a dog sniff of his vehicle. The court held that the totality of the circumstances showed that Keil exhibited several signs of impairment, he failed routine field sobriety tests, his vehicle had missing and removed interior panels, and he admitted to using controlled substances just 36 hours earlier and concluded that LE had reasonable, articulable suspicion to expand the scope of the traffic stop to conduct a dog-sniff search of Keil’s vehicle.

Keil then argued that the state did not establish probable cause to search his vehicle because the particular dog used in the search was unreliable and the finding that the K9 had “zero false positives” was clearly erroneous. He asserted that the K9 was only recently certified before conducting the sniff of his vehicle and that the state failed to provide sufficient evidence or any detail of the K9’s training. The appellate court disagreed. While the state did not offer into evidence any activity logs or training certifications detailing the K9’s deployments, the handler testified in some depth about the K9’s training, certification, and field history: the team completed a 13 week training course for his dual purpose K9; the K9 was certified; handler was trained to determine whether the K9 alerted to false positives; the team had been in the field for about 4 months and the K9 had been deployed between 5-10 times. The court noted that Keil had a chance to cross-examine the handler about the K9’s training and certifications and the opportunity to present his own witnesses in his defense. Thus, he had a chance to challenge the K9’s reliability at the district court. Here, the K9 made a positive alert to the bed of the truck where narcotics were found. Caselaw does not require a certain number of K9 deployments in the field before a narcotics detecting dog can be considered reliable. And there are no circumstances surrounding the dog-sniff search here that suggest unreliability. Based on the totality of the circumstances, the K9 alert was reliable and therefore provided the handler with sufficient probable cause to search the vehicle.

Note: Nothing really new here, but a good reminder that as long as the team is certified and either has no concerning deployments or all concerning deployments have been remediated, the court should accept the alert as reliable.

United States v. Approximately $13,205.54 (North Carolina 2022) 2022 U.S. Dist. LEXIS 46934
Currency Sniff

During an investigation of Franklin and his vehicle, money was found. The money was removed from the car and 5 identical bags were presented to a K9. The money was only in one bag. The K9 alerted on the bag which contained the money.

Franklin asserted that the government had not met its burden that the money was proceeds of drug trafficking or intended to be used to obtain drugs. The court agreed with Franklin. There were several factors considered most of which Franklin explained to the court’s satisfaction. The government finally contended that the narcotics K9 positively alerting to the cash that had been in the center console of Mr. Franklin’s vehicle constitutes evidence that such cash was proceeds of illicit drug activity.

The court held that the cash to which the K9 alerted, however, was located inside of a vehicle that smelled strongly of marijuana. Mr. Franklin admitted during the traffic stop that he had been smoking marijuana, and multiple officers on the scene noted the strong odor of marijuana coming from Mr. Franklin as well. In light of these circumstances, it is not surprising (in fact, it would be expected) that the cash located in the center console of that vehicle would also smell of marijuana. At most, the positive K9 alert establishes that the cash was within the vicinity of marijuana—a fact that was already known to LE by virtue of the shake observed on the floorboard of the car and Mr. Franklin’s admission that he had been smoking marijuana. The positive K9 alert is not at all probative of the subject currency having been obtained through illicit means.

Note: In forfeiture cases, the government has the burden to prove whether the (in this case) cash was either proceeds from drug trafficking or intended to be used to facilitate drug trafficking. Here, under these specific circumstances, the K9 alert was held to be of little evidentiary value. This is not to say that LE/handler did anything wrong. It was just a situation of other facts creating a situation where the alert had no real probative value on the specific issue of what the currency was being used for.

United States v. Ruel (Nebraska 2022) 2022 U.S. Dist. LEXIS 48134
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

A drug trafficker was found to have messages between him and his supplier. That number turned out to be Ruel, who had been involved in drug trafficking in 2016 and also had criminal history for drug crimes. Ruel was the passenger in a traffic stop where he was searched and found in possession of methamphetamine and other indicators of drug trafficking. Ruel admitted that he was in the process of buying methamphetamine from the driver. LE also had a CI tell them that he bought pounds of methamphetamine from Ruel.

Based on this information, LE set up surveillance of drug traffickers and saw them interact with Ruel in several locations. Finally Ruel parked at a residence and Ruel opened his trunk. A male came from the residence and met with Ruel for about 2 minutes, but didn’t see them exchange anything from his vantage point. The other traffickers were there too and when they left, they went in the opposite direction of Ruel. Based on this investigation, LE had a uniformed patrol officer execute a traffic stop. That officer happened to be a K9 handler. While she was following the vehicle, another vehicle sideswiped Ruel which caused a chain reaction multi-car pile-up. After calling for back up and having dispatch send the appropriate rescue units, she approached Ruel and asked for license and registration. He was very nervous, hyped up and visibly upset about damage to his car. He had air fresheners hanging from almost every vent and handler detected a strong odor of air freshener. After investigation, handler determined that Ruel was not at fault. She asked for consent to search, but Ruel refused consent. At that point, handler retrieved her K9 and after a free air sniff, the K9 alerted. The elapsed time from the accident and the K9 alert was 14 minutes and 75 seconds between returning Ruel’s documents and the K9 alert.

Since this wasn’t a traffic stop, but actually an accident investigation, Ruel dropped his challenge that LE did not have reasonable suspicion to contact him. The remaining issue was whether handler unconstitutionally prolonged the contact to allow her K9 to sniff and alert on the vehicle.

The appellate court stated that when handler contacted Ruel, she saw the many air fresheners and observed Ruel’s demeanor which indicated to her that there could be drug crime activity. The court held that handler did not impermissibly prolong the contact for several reasons: 1) the delay was 75 seconds at most, which by itself does not prove no prolongation, but is an indication of the sniff not measurably extending the contact; 2) it still was unclear whether Defendant’s car was drivable or whether he would need to wait for a tow truck and 3) other officers were still investigating the rest of the collisions so the traffic accident investigation was not complete at the time of the K9 sniff.

The court went on to state that even if it was determined that there was a prolonged detention, handler had reasonable suspicion of criminal activity to do so. Not only did handler have some indicators of drug crimes at the scene, but she was imputed to have the information gathered by the drug investigators under the collective knowledge doctrine because the investigators kept in touch about the ongoing investigation and they contacted handler to request a traffic stop. Once handler contacted Ruel, she observed he was very nervous and “hyped up” and had “air fresheners in almost every single vent and hanging,” and smelled a very strong odor of air freshener coming from inside the vehicle. Handler knew from her training and experience that an overwhelming amount of air fresheners could be an attempt to mask the odor of narcotics. The totality of the circumstances—both handler’s personal observations and the collective knowledge of the investigating officers—supplied handler with reasonable suspicion that Ruel was engaged in criminal activity. Having not only the traffic accident to process, but also reasonable suspicion of ongoing criminal activity, handler was permitted to investigate beyond the scope of the traffic accident itself and to detain Ruel for a reasonable time in the course of that separate investigation. Handler focused on the task at hand and completed her investigation in a reasonable and expeditious fashion. Under the circumstances, the court found the K9 sniff in this case was not the product of an unconstitutional (prolonged) detention.

Note: Nothing really new here, but an interesting set of facts. Don’t forget about the collective knowledge doctrine. You don’t have to have all the facts of the ongoing investigation, but enough that it makes sense that you know why you are being asked to pull a car over. There are different levels of proof in individual states; be sure to check with your local prosecutor on the applicable standard in your jurisdiction.

People v. Moua (California 2022) 2022 Cal. App. Unpub. LEXIS 1549
Consensual Contact; Odor (Sight) of Marijuana as Probable Cause

LE received word that three callers reported a man in a red shirt and a woman walking through alleys and looking into cars. In an apartment complex parking lot in the area, LE found Moua and a woman seated in a silver sedan (the vehicle). Moua was wearing a red shirt. LE did not see defendant driving the vehicle.

LE decided to make contact with Moua and the woman, but the woman got out and walked away. Moua was in the driver’s seat with the window rolled down about 2 inches and LE could smell the odor of marijuana from his position at the passenger window. Moua denied living in the apartment complex, and said he was there to drop off the woman who walked away from the car. Moua was sweating profusely and appeared nervous.

In response to LE’s request, Moua said he did not have insurance or registration. Moua continually kept his arm on the center console in the vehicle, leading LE to believe that Moua was guarding the console because he was concealing something. LE told Moua to put his hands on the steering wheel and told him that LE smelled marijuana and asked Moua why that was.

LE then moved to the driver’s side of the car and noted that Moua had taken his hands off the steering wheel and was moving his right hand, making LE believe he might be reaching for something. LE ordered Moua to exit the vehicle. When Moua continued to reach to his right, LE forcibly removed Moua, handcuffed him, and placed him in the patrol car.

LE returned to the vehicle and saw small bits of marijuana and smelled the odor of fresh marijuana. LE did not move anything to be able to see the marijuana. LE then searched the vehicle and discovered a loaded gun and methamphetamine. Other indicators of drugs sales were found.

The parties agreed that the encounter was consensual until Moua was ordered out of the vehicle by LE. The court held that the information from the 911 calls and the appearance of the vehicle and clothing of Moua and his companion would be enough to detain them. During this investigation, LE perceived a potential officer safety threat because of the movement of Moua’s hands inside the vehicle and ordered Moua to place his hands on the steering wheel multiple times. Based on Moua’s failure to place his hands on the steering wheel and keep them there, and Moua’s apparent refusal to exit the car when ordered to do so, LE had probable cause to arrest defendant for obstructing a peace officer.

When LE saw marijuana in the vehicle, this provided probable cause for search because Proposition 64 did not decriminalize possession of loose marijuana not in a container or an open container of marijuana in a vehicle during operation of the vehicle. (Veh. Code, § 23222, subd. (b)(1); Health & Saf. Code, § 11362.3, subd. (a)(4).) When an officer legally discovers loose marijuana inside a vehicle, it is appropriately searched for other loose marijuana or open containers of marijuana.

Note: This opinion is consistent with other decisions by the California Appellate Court. If there is an illegal possession of marijuana, then LE has reasonable suspicion and/or probable cause to further investigate and/or arrest and search.

United States v. Melendez (Utah 2022) 2022 U.S. Dist. LEXIS 47368
Investigative Contact; Prolonged Detention

LE was well trained and experienced in narcotics including interdiction and K9 handling. LE was on patrol when he saw a black SUV parked outside a private property that was under renovation and not in operation at around 2300 hours. LE had investigated vandalism at that location previously which had been attributed to kids with skateboards and young adults in a minivan. LE positioned his cruiser with his headlight illuminating the SUV. LE saw Melendez zipping up his pants and believed he had been urinating on the side of the building. LE directed him back to the SUV and told him to have a seat. LE told Melendez that he couldn’t urinate on the building and Melendez said he was looking for a place to camp. LE then started his “drug interdiction” questioning, asking for ID, his travels, etc. LE perceived some hesitation, pauses and glancing away which indicated to LE that Melendez was being evasive or not entirely truthful. LE asked if there was anything illegal in the SUV and Melendez said no. LE then asked about each category of controlled substances and Melendez said no immediately to all of them, except methamphetamine when he hesitated before saying no. Melendez was also shaking, appearing nervous. The court noted that these observations were not visible on the body cam, instead showing Melendez being calm and responsive. LE had Melendez get out and LE searched Melendez, and had him put the contents of his pockets on the patrol car. Then LE had Melendez expose his waistline and turn around. Then LE patted Melendez down. No contraband was found (no guns either).

One of the items was a wad of cash in small denominations. Melendez said it was travel money (earlier he said he was on his way to Minnesota). In addition, Melendez had previously denied possessing large amount of cash.

LE told Melendez he was going to have his K9 sniff the car and he could either consent or not but it was going to happen. Melendez said, “I’d rather just leave.” LE told him he was detained. Information requested from dispatch came back about 5 seconds before the K9 was deployed. The K9 alerted and LE asked Melendez for the keys. At that point, Melendez stopped communicating with LE. LE obtained the keys from Melendez’s person after handcuffing him. A search of the vehicle revealed 67 pounds of methamphetamine. Another $10K was found as well.

The appellate court first held that based on Melendez’s presence at the closed business late at night, and the recent vandalism to the motel, LE had a reasonable, articulable suspicion of criminal activity to briefly detain Melendez to question him about why he was parked at the motel and to investigate potential offenses of trespassing, vandalism, criminal mischief, and public urination. Then LE testified that by the time Melendez got back into the SUV the purpose of and justification for his initial detention had been fully satisfied. The basis for the initial detention was completely dispelled. However, LE had received from Melendez his identification and had requested dispatch run warrants check on Melendez. He was still awaiting the return of information from dispatch while he engaged in conversation with Melendez and performed a Terry frisk. This was permissible and reasonable under the circumstances. Therefore, the stop remained lawful while Deputy Warren waited for dispatch’s response. Once LE received that information, the stop was complete and LE was required to release Melendez and send him on his way. Instead, LE deployed his K9 which extended the stop impermissibly. The appellate court also examined whether there was sufficient reasonable suspicion of other crimes which would have allowed extension of the stop. The court was not impressed with LE’s testimony because it was contradicted in places by the video and that LE was bragging about the encounter after the arrest. During that bragging, he repeatedly changed key facts in his renditions, making the court reluctant to believe him and the motion to suppress was granted.

Note: There may have been a different result if LE had testified consistently with his body cam. This case is also a cautionary tale to be very circumspect in talking to other LE while your body cam is recording. In LE’s defense, he was not able to view his body cam footage prior to testifying due to equipment malfunction. I don’t know when LE tried to view his body cam footage, but it’s a good bet that his attempt was just before court and he had no time left to ask for assistance. Make sure you have reviewed your body cam prior to testifying and give yourself enough time to view it such that if you encounter issues, you can get them addressed before you’re on the stand.

State v. Hayes (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 413
Traffic Stop (Consensual Contact); Odor of Marijuana as Probable Cause

LE responded to a single car accident. When he arrived, he saw other LE officers present, the driver was rummaging through items in the open hatchback and the passenger seated on the guardrail with a black bag. LE contacted the driver and asked him to sit on the guardrail with passenger. Driver picked up the black bag and put it in front of him. LE and another smelled marijuana in the vehicle. LE called for more units, saying they had “smell.” Both occupants denied having medical marijuana. They were arrested and searched based on the smell. The car was searched. No contraband was found. In the black bag was marijuana in a sealed plastic bag and 3 pills.

The trial judge was dubious about LE’s assertion that they smelled marijuana. In addition, that court also found that it was implausible that the marijuana found in the black bag left any aroma of marijuana in the car. He noted again that no contraband or marijuana was found in the vehicle. Instead, it was found in the black bag that was sitting fifteen to twenty feet away from the vehicle. He observed that the black bag was picked up by a sheriff’s officer and placed on LE’s patrol car but no one indicated a smell of marijuana coming from the bag. According to the trial judge, “[i]t is simply not tenable that a black bag containing a small amount of raw marijuana which was contained in another plastic bag, left such an odor of raw marijuana in [a vehicle], which had been on the highway for some appreciable amount of time with its doors and rear hatchback open.” Because the trial court disbelieved LE, the motion to suppress was granted.

The government appealed.

The appellate court started by saying that prior to recent passage of legislation legalizing marijuana, it was well settled that the odor of marijuana was probable cause and therefore would support an arrest and a search of the vehicle under the automobile exception. Because the appellate court was a reviewing court, they were bound by the lower court’s assessment of credibility unless clearly erroneous. Here, accepting as they must the judge’s credibility determination and findings of fact that are amply supported by the evidence, the appellate court had no cause to disturb the lower court’s conclusion that the government did not meet its burden to prove the search of the bag was lawful under the circumstances. Based on the lower court’s findings and taking into consideration the totality of circumstances before the arrest, the appellate court must come to the same conclusion that Cahn did not have probable cause to arrest occupants and therefore no cause to search the black bag.

Note: Here, the courts, both trial and appellate, made a finding that LE was not credible. This is a terrible situation for LE because not only was the case dismissed but in many jurisdictions, that finding would have to be disclosed on any future case that particular officer was involved in. If that officer testified to anything in the future, the defense could impeach him on the fact that these judges thought he was not believable. This could be a career ending incident. Not sure what happened here; but be sure to review all evidence before testifying, including all video relevant including other officers’ video who were present.

United States v. McAliley (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 44258
Border Search; Traffic Stop; Alert as Probable Cause; Prolonged Detention; Collective Knowledge Doctrine

CBP officers at Memphis International Airport intercepted a package that originated from China and was addressed to Justin Sellers at Jerome Street, Philadelphia. LE deemed the package suspicious as it was passing through the Memphis International Airport FedEx Hub because: (1) The shipper had prior shipments seized by CBP for customs violations, (2) the package was labeled as “silicon dioxide,” and (3) the “silicon dioxide” was being sent to a residential address, rather than a company. (Silicon dioxcide is often used as a cutting agent and is often listed on the manifest to mask the true contents as it is not illegal).

CBP agents opened the package and found a kilogram of Xylazine, a horse tranquilizer. This is used as cut in illegal drug trafficking. The Jerome Street address was a private residence in which McAliley lived (not a veternarian or a business). Since drug dealers often use false names to ship, receive and transport drugs and drug paraphernalia, this also indicated that the package contents were going to be used in illegal drug trafficking.

The package was delivered to the address and LE set up surveillance. LE saw a man, believed to be the father of McAliley, picked up the package and brought it inside. About 30 minutes later, McAliley arrived and retrieved the package. McAliley drove to his residence and sometime later left to pick up his girlfriend. He was driving recklessly and speeding, which LE believed were counter-surveillance tactics. McAliley returned to his residence with his girlfriend. Later, the girlfriend got into the car and drove slowly around the block. She slowed down and peered at one of LE. LE thought his position was compromised and called for assistance. Girlfriend drove away and McAliley left the residence on foot with a black duffle bag, walked through the back alley and rejoined girlfriend.

LE then had a uniformed officer perform a traffic stop for failure to signal a turn and running a stop sign. He had both occupants exit the car and got ID from both. He told them that if they were otherwise in lawful operation of the vehicle he would let them go with a warning. However, he did not intend to let them go because the ongoing drug investigation.

When running their identification, LE found out that McAliley had drug and gun offenses. He had not been truthful about that initially. LE then informed them that they were being detained and a drug K9 was en-route to sniff the car. This was about 8 minutes into the stop. While waiting, LE continued to question McAliley about his residence and he claimed to be living on Jerome. They then both lied about where they were coming from. Consent to search was refused. Even though LE believed they had enough probable cause to search, they waited another 90 minutes for the K9 unit. When the K9 arrived and sniffed the car, the K9 alerted. The vehicle was searched and fentanyl, a gun and magazines, $61K in cash, packaging material and cell phones. A piggy-back warrant for McAliley’s true residence revealed additional evidence of drug trafficking.

McAliley claimed that although the government had probable cause for the traffic stop, once the officer had his license and registration, he should have been allowed to leave because there was no reason to detain him further.

The appellate court held that based on the collective knowledge doctrine, LE had sufficient probable cause of drug trafficking such that the 90 minute delay in getting the K9 team on scene was justified. The court first made a finding that the officer conducting the traffic stop was in sufficient communication with the drug trafficking investigators such that the stopping officer was imputed with the collective knowledge of the ongoing drug investigation. In addition, although the substance in the package was not illegal, the court found that it was drug paraphernalia based on the information, training and experience of the drug investigators. The court then addressed the totality of the circumstances and found that based on McAliley’s constructive possession of a kilogram of Xylazine, the mislabeling of the package, the counter-surveillance tactics, McAliley’s dishonesty at the traffic stop, and the fact that the activity took place in a high crime area, the court found that the totality of the circumstances supported a finding of probable cause and LE did not violate Defendant’s Fourth Amendment rights when they detained McAliley at the traffic stop and ultimately searched his car.

Note: The fact that the investigation came to a halt for 90 minutes while waiting for the K9 team was not really addressed because the court found that there was probable cause to detain and search the vehicle prior to the alert. Since the court made that finding, the longish wait for the K9 really wasn’t an issue. However, these issues are always fact specific and any delay will need to be justified by reasonable suspicion and/0r probable cause. 

State v. Rule (Idaho 2022) 2022 Ida. App. Unpub. LEXIS 73
Traffic Stop; Alert as Probable Cause; Prolonged Detention

Traffic stop for signal violation. Rule was the driver and could not provide proof of insurance as the car belonged to her boyfriend. She also displayed common signs of methamphetamine intoxication. When LE went back to his cruiser to write a citation for failure to provide proof of insurance, he also called for a K9 team to respond. He then ran her information and finished writing the citation. When he went back to her car, LE had her step out to explain the citation. While this was happening, the handler had his K9 sniff the car which resulted in an alert. A search revealed meth and paraphernalia in a purse. After standard FSTs, she was also arrested for DUI.

The only challenge on appeal by Rule was that LE extended the traffic stop impermissibly to allow for a K9 sniff. The court found that LE diligently pursued the original purpose and was still pursuing that purpose when the K9 alerted. Therefore, there was no prolonged detention.

Note: Nothing really new here. Since Rule did not challenge the factual findings of the trial court, the appellate court made short work of this case and affirmed the trial court’s denial of the motion to suppress.

State v. Taylor (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 367
Tracking/Trailing Evidence; Reliability Foundation; Expert Testimony by Handler

During a rape and car theft investigation, LE located the victim’s vehicle. A K9 team responded to the stolen car and was able to track a trail to within 1.5 blocks of Taylor’s last known address. The K9 team was certified after a 9 month academy and recertified twice a year, and trained and attended seminars regularly. They had worked together for about 4 years and had worked over 200 crime scenes.

Taylor complained that the government was allowed to admit handler’s testimony regarding techniques for using K9s to track suspects and explained K9’s behavior while tracking defendant.

A person may testify as an expert “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” In addition, the universally accepted prerequisites to the admission of testimony regarding K9 tracking are: 1) The K9’s handler must have sufficient knowledge, skill, training or experience to evaluate the K9’s actions. 2) Once qualified as an expert, the handler must give testimony about the particular K9 used and that the K9 a) is of stock characterized by acute scent and power of discrimination and that this particular K9 possessed those qualities; b) was trained and tested and proved to be reliable in the tracking of human beings; c) was laid on a trail where circumstances tended to show that the suspect has been, or a track which circumstances indicated was made by the suspect; and d) followed the scent or track to or towards the suspect’s location and that the K9 was properly handled during tracking. Once this foundation has been laid, the handler may testify as to what the K9 did during the tracking and give his interpretation and opinion of the K9’s actions.

Here, Taylor never contended that K9 handling and tracking was an unfit subject for expert testimony and never disputed handler’s ability to interpret K9’s actions. Rather, Taylor argued: (1) K9 was an unreliable tracker due to his breed and inexperience; and (2) the probative value of the K9 tracking evidence was outweighed by its undue prejudice under Rule 403.

The K9 here was a Belgian Malinois, a stock characterized by acute scent and power of discrimination. Handler testified to the widespread and common use of Belgian Malinois as tracking dogs. The court held that K9 also possessed the necessary training and credentials to indicate an acute scent, power of discrimination, and reliability based on the above training and experience.

Taylor also argued the prejudicial value of the State’s K9 tracking evidence outweighed its probative value because the State could not prove K9 was in fact tracking defendant. In particular, Taylor argued the street where K9 lost the scent was in the vicinity of the address the police had on file for Taylor. However, it was unclear whether Taylor was at that address any time on the date of the tracking. Taylor was not arrested at that address,” and therefore, since K9 never actually led the police to Taylor, the State’s K9 tracking evidence lacked probative value.

The appellate court held otherwise. Under the standard outlined above, K9 was not required to find Taylor. For admission of the tracking evidence, it was sufficient to prove that the K9 “followed the scent to or towards the suspect’s location and that the dog was properly handled during the tracking.”  The State was not required to prove K9 found Taylor nor that he was in fact the person K9 was tracking; it was sufficient that K9 was a reliable tracker and handler properly handled K9 during the tracking.

The trial court found K9’s tracking to be reliable, although not conclusive and the jury was free to accept or reject the fact that K9 tracked Taylor’s scent to the location about a block and a half from Taylor’s last known address. The evidence was admitted for the jury to consider the weight of said evidence. Since the State did not need to conclusively prove K9 was in fact tracking defendant, the evidence was admitted for the jury to weigh it.

Note: Some states require that the K9 be a breed that is known to have a superior scent ability. Some don’t. You should check with your prosecutor as to whether this is an issue in your state. Always have your prosecutor designate you as an expert in K9 training and behavior and how scent travels. The jury can then give more weight to your testimony. In addition, every time you are designated an expert, that should be added to your hero sheet. There were other issues in this appeal that are not reviewed here as they are not relevant to the K9 participation in this case.

Burgin v. Marshall (Alabama 2022) 2022 U.S. Dist. LEXIS 40746
Tracking/Trailing Evidence

K9 team responded to a homicide in which the suspect fled the scene on foot. K9 team arrived and picked up a track of human scent and alerted on a red Solo cup which handler seized as evidence. About 10-15 feet away, K9 alerted on some bushes which contained a bloody rag and a church flyer (homicide happened in a church). These were seized as well. K9 continued to track and witnesses told handler that a black male had just run through the alley. When K9 lost the scent, handler deployed K9 to search for the knife used. K9 alerted to bushes close to where the Solo up was found and a knife was located and seized. Testimony indicated that K9 was trained in search, tracking and narcotics.

Other evidence proved that witnesses saw a black male enter the church and leave with a piece of paper and a red Solo cup, walking in the direction where K9 tracked human scent. The blood on the rag was victim’s as was the blood on the knife. Suspect Burgin’s DNA was on the Solo cup and his fingerprint was on the church flyer.

The appellate court held that, viewing that evidence in the light most favorable to the prosecution in this case (since Burgin was appealing a conviction), a rational trier of fact (jury in this case) could have found that Burgin entered the church, fatally stabbed the victims, left the church with a red Solo cup, church flyer, bloody rag, and the murder weapon, and then discarded them in the bushes nearby where the K-9 unit later found them. While the evidence was circumstantial, that evidence supported an inference of Burgin’s guilt beyond a reasonable doubt. Therefore, the conviction was affirmed.

Note: This is a great example of how a K9 can be utilized to find evidence that, combined with other evidence, can be very powerful.

United States v. Jones (Kentucky 2022) 2022 U.S. Dist. LEXIS 41609
Traffic Stop; Odor of Marijuana as Probable Cause

Jones was pulled over by LE for a seatbelt violation. When LE approached, LE could smell the odor of marijuana. LE called for back up and then asked Jones if he had been drinking or using drugs. Jones denied both. LE then asked, “Who were you smoking weed in the car with?” Jones claimed his younger brother had been smoking near his car earlier in the day. Jones was removed from the car and LE searched it, finding contraband.

The appellate court held that the stop was supported by the observed seatbelt violation and the odor of marijuana provided probable cause to search the vehicle.

Note: Marijuana has not been legalized in Kentucky. For those states in which marijuana has been legalized and the odor of marijuana no longer provides probable cause for search, this case could have validly been extended to investigate a DUI. This may have discovered enough evidence to search the car or get a K9 on scene. Pursuing all avenues of admissibility is always good practice.

United States v. Estes (Minnesota 2022) 2022 U.S. Dist. LEXIS 41951
Traffic Stop; Odor of Marijuana as Probable Cause

Estes was stopped for dark window tint. LE smelled a strong odor of marijuana coming from the vehicle as LE approached. LE searched the car based on the odor and found contraband.

The appellate court found that the stop was justified for the dark window tint and that the search of the vehicle was based on the probable cause of marijuana odor. Estes complained that the odor could have been from legal hemp and therefore could not form the basis of probable cause. The court disagreed and stated there was no evidence in the record that burned marijuana smelled so much like burned hemp that experienced LE cannot tell the odors apart. Moreover, Estes said not a word about hemp at the scene, but did implicitly admit that what LE was smelling was marijuana. Add LE’s other observations—Estes’s bloodshot eyes; the green, leafy debris around the console and drink holder; the Cookies—brand backpack in the back seat; and the monocular spotting scope, and there was “a fair probability that contraband or evidence of a crime would be found in [the car].”

Note: Minnesota has not yet legalized marijuana for recreational use. Hemp is legal with very specific conditions.

State v. Campbell (Kansas 2022) 2022 Kan. App. Unpub. LEXIS 147
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for driving on a suspended license and on an outstanding warrant (LE had prior knowledge of both). While talking to Campbell (in the driver’s seat), LE detected the odor of burnt marijuana coming from Campbell and could still smell it after Campbell exited the car. Campbell was also wearing a hat with a marijuana leaf decoration. A search of Campbell revealed marijuana paraphernalia, counterfeit money and an empty gun holster. The car was then searched for marijuana and other items related to marijuana, a gun and counterfeit money. Guns and ammo were found as well as packaging materials. In a box for which Campbell had the key was methamphetamine packaged for sale and other items used for narcotics sales.

The appellate court first found that the stop was lawful (and Campbell did not challenge the basis for the stop in the appeal).

Campbell then argued that LE did not have probable cause to search for either raw marijuana or drug paraphernalia because he testified to only smelling burnt marijuana on Campbell’s person and not specifically in Campbell’s car. The testimony actually was that LE could smell the odor when he approached but could not tell if it was coming from Campbell or the vehicle.

However, the appellate court was not impressed with such a distinction. Because LE may rely on reasonably reliable information in making a probable cause determination, the court considered the facts known to LE at the time. LE witnessed Campbell drive a vehicle to another location with a suspended license. He then had contact with Campbell while he was still sitting in the driver’s seat of that vehicle. At that time LE smelled burnt marijuana. While LE testified he smelled the marijuana on Campbell’s body even after removing him from the vehicle, LE still had enough information under the totality of the circumstances to believe there was a fair probability that Campbell had recently smoked marijuana and that evidence would be in the vehicle.

With the very strong odor of burnt marijuana emanating from the car, it would seem to be a logical conclusion that the passengers smoked inside the car. It is very reasonable for a person of ordinary caution to suspect that evidence of a crime related to marijuana possession would be in the car from which the person smelling like marijuana was just removed. Subsequent removal of that person from the car does not then make the car unrelated to the detention. Once LE smelled the odor of burnt marijuana on Campbell, there existed a fair probability that the car contained contraband or evidence of a crime.

The court finally stated that although the burnt marijuana smell alone was sufficient to establish probable cause, a review of the totality of the circumstances further supports the finding of probable cause.

Note: Kansas has not legalized marijuana for any use.

United States v. Ortiz-Ortiz (New York 2022) 2022 U.S. Dist. LEXIS 36169
Traffic Stop; Odor of Marijuana as Probable Cause

Postal investigators found a suspicious package coming from Puerto Rico and addressed to an address in New York. This was two days before the anticipated delivery date. One of the reasons the package was seized is that the inspector recognized the name and writing as consistent with previous packages that had been seized and found to contain cocaine. The current package was not opened but LE did a controlled delivery so that they could track who received the package because it was common for packages containing contraband to be transported from the delivery address to another location. An individual picked up the package, went back into the residence and then left a short time later, carrying a white item and got into a vehicle. He stayed in the vehicle a short time and then got out without the white object. The vehicle then drove off. LE followed the vehicle. The car was being driven recklessly and committing lane violations so Ortiz (the driver) was stopped. LE detected the odor of marijuana coming from the vehicle and Ortiz admitted to smoking marijuana within about an hour. Based on that admission, LE got Ortiz out and had him perform some FSTs. During that time, a K9 team sniffed the vehicle and the K9 alerted. A search warrant was obtained and the white box was found to contain cocaine. A small bag of marijuana was also found.

The appellate court first held that the stop of Ortiz was lawful based on the lane violations. As for the sniff, this was well within the time frame defined by the DUI investigation as well as supported by additional reasonable suspicion based on the odor of marijuana and the admission of marijuana use.

Note: New York has legalized small amounts of marijuana for recreational use, but prohibits the use in a motor vehicle (even if parked). And of course, driving under the influence is also prohibited. The court did not address the odor of marijuana as part of the probable cause but there was plenty based on the other evidence. The court also stated that LE was justified in conducting an investigative stop on the vehicle based on their investigation into the package.

United States v. Bastin (Indiana 2022) 2022 U.S. Dist. LEXIS 37615
Traffic Stop; Prolonged Detention

Bastin was pulled over by LE because he had an outstanding arrest warrant and that Bastin had a lifetime driver’s license suspension. LE knew what car Bastin drove and what Bastin looked like. LE also knew that Bastin had a history of resisting LE. Therefore, other units were present. LE observed Bastin run a red light and activated the siren. Bastin rabbited, hitting speeds of up to 100 mph and driving recklessly. Bastin finally hit a ditch and was unable to continue. LE pulled up and ordered Bastin out at gunpoint. There was a lot of activity inside the car by Bastin, but he eventually got out with his hands up. LE cleared the car for other occupants and finding none, had a K9 sniff the car. The K9 alerted. A search of the car revealed methamphetamine in the center console. The car was then towed.

The court first held that the stop was constitutional because LE knew Bastin and recognized him. Of course, once Bastin ran the stop light and took off, LE had cause to stop him as well.

Next, Bastin objected to the vehicle search. He argued that after the crash Bastin was in custody as he was removed from the vehicle, placed in handcuffs and inside a police vehicle. There was no threat to LE as he could not access the vehicle he had been driving. And, he argued, LE knew that the vehicle would be towed, the car was immobilized and there was plenty of time to procure a warrant. However, the court found that the search was justified under a different theory; the K9 alert provided probable cause for search under the automobile exception since K9 was properly trained and certified.

Note: This is a textbook K9 case. Driver arrested on vehicle code violations as well as evading and the K9 was taken around the vehicle while LE was dealing with the arrest and the towing of the vehicle.