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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 2023 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are final. Sometimes a court will delay in finalizing a case and that causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (“Unpub.”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. Also, the arguments in these cases can be used; the case just can’t be cited as precedent in court.
I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are always 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 FROM MARCH 2023 FOR APRIL 2023 UPDATE
Kentucky lawmakers gave final approval to a bipartisan bill to legalize medical marijuana, sending the legislation to the governor’s desk. Also, Kentucky bill allowing for the regulation of products made with delta-8-THC derived from hemp is on its way to the governor’s office, after both houses of the state’s General Assembly unanimously approved the bill.
Delaware lawmakers gave final approval to a pair of bills to legalize cannabis and regulate its sale, sending the legislation to the desk of Gov. John Carney, who rejected a similar decriminalization measure last session.
Oklahoma legislators advanced multiple proposals aimed at giving law enforcement and regulators more tools to rein in the state’s medical marijuana program.
Also in Oklahoma, voters decisively rejected a referendum to legalize recreational marijuana and tax and regulate its sale during a special election.
INDEX OF CASES REVIEWED FROM MARCH 2022 FOR APRIL 2023 UPDATE
State v. Krevolt (New Jersey) 2023 N.J. Super. Unpub. LEXIS 298 – Traffic Stop; Prolonged Detention
People v. Almenteros (New York 2023) 2023 N.Y. App. Div. LEXIS 1131 – Traffic Stop; Passenger; Prolonged Detention
United States v. Rutledge (8th Cir. South Dakota) 2023 U.S. App. LEXIS 5156 – Traffic Stop; Prolonged Detention
People v. Drain (Illinois 20203) 2023 IL App (4th) 210355 – Traffic Stop; Alert as Probable Cause; Prolonged Detention; Reliability Foundation
United States v. Covington (3rd Cir. Pennsylvania 2023) 2023 U.S. App. LEXIS 5510 (Unpub.) – Reliability Foundation; Alert as Probable Cause; Cueing
Morris v. City of Lakeland (Florida 2023) 2023 U.S. Dist. LEXIS 38965 – Excessive Force; Unlawful Arrest; Common Law Battery
United States v. Hines (8th Cir. Iowa 2023), 2023 U.S. App. LEXIS 5698 – Sniff of Curtilage; Good Faith Exception
State v. Balbi (New Jersey) 2023 N.J. Super. Unpub. LEXIS 363 – Sniff of A Vehicle; Unlawful Seizure; Alert as Probable Cause
State v. Gabr (Oregon 2023) 324 Ore. App. 588 (Unpub.) – Traffic Stop; K9 at Traffic Stop
United States v. $67,000 in U.S. Currency (Texas 2023) 2023 U.S. Dist. LEXIS 43325 – Currency Sniff
Love v. Commonwealth (Kentucky 2023) 2023 Ky. App. Unpub. LEXIS 186 – Traffic Stop; Prolonged Detention
Bowman v. Hunter (Florida 2023) 23 U.S. Dist. LEXIS 45461 – Excessive Force; Monell Liability; Negligence
United States v. Bell-Johnson (Kansas 2023) 2023 U.S. Dist. LEXIS 45821 – Traffic Stop; Inventory Search; Good Faith Exception; Inevitable discovery
State v. Dorff (Idaho 2023) 2023 Ida. LEXIS 30 – Traffic Stop; Trespass of K9; When a Sniff is a Search
State v. Speelman (Ohio 2023) 2023-Ohio-992 – Odor of Marijuana as Probable Cause
Minafee v. Bernalillo Cnty. Bd. of Comm’rs (New Mexico 2023) 2023 U.S. Dist. LEXIS 53076 – Traffic Stop; Unlawful Search and Seizure; Qualified Immunity; K9 Entry into the Vehicle
Commonwealth v. Gonzalez (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 778 – Traffic Stop; Reasonable Suspicion; Odor of Marijuana
Hartsell v. Cnty. of San Diego (9th Cir. California 2023) 2023 U.S. App. LEXIS 7417 (Unpub.) – Excessive Force
State v. Stanford (Ohio 2023) 2023-Ohio-1011 – Traffic Stop; Prolonged Detention
People v. Castro (California 2023) 86 Cal. App. 5th 314 – Consensual Contact; Odor of Marijuana as Probable Cause
Commonwealth v. Brodie (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 793 – Traffic Stop; Prolonged Detention; Reasonable Suspicion
United States v. Howard Davis (Louisiana 2023) 2023 U.S. Dist. LEXIS 54423 – Traffic Stop; Pretext Stop; Prolonged Detention
State v. Hartwig (Wisconsin 2023) 2023 Wisc. App. LEXIS 327 (Unpub.) – Traffic Stop; Reasonable Suspicion; Prolonged Detention
Colyer v. Jerrett (Indiana 2023) 2023 U.S. Dist. LEXIS 54751 – Excessive Force; Heck Doctrine; Qualified Immunity; Monell Liability
Warfield v. Commonwealth (Kentucky) 2023 Ky. App. LEXIS 24 (Unpub.) – Traffic Stop; Reasonable Suspicion
CASES REVIEWED FROM MARCH 2022 FOR APRIL 2023 UPDATE
State v. Krevolt (New Jersey) 2023 N.J. Super. Unpub. LEXIS 298
Traffic Stop; Prolonged Detention
LE stopped co-D and Krevolt (passenger) when they drove down a one way street in the wrong direction. This was during lockdown and no one was supposed to be out of their homes unless on an essential errand. The area where they were had no essential businesses. A check of the plate indicated that the car was from “out of town.” As LE approached the vehicle, he was looking for indicators that might indicate the occupants were concealing contraband and/or weapons. Krevolt rose in his seat, which LE considered consistent with someone hiding something. Krevolt also looked nervous (no further). The driver and passenger had different stories about their travel. The car was also messy. LE then asked if there was any contraband or weapons in the car. The passenger looked at the driver before saying, “no,” hesitantly. Krevolt was also breathing heavily and staring at the driver.
LE told Krevolt and driver to get out of the car. (LE testified that he only ordered the driver out, but the body cam indicated he ordered both out). Driver refused consent to search. Both were Terry frisked and told them to sit on the curb with their legs outstretched. Krevolt was sweating, shaking, acting nervous and twitching. He also had a suspicious bulge in his crotch which LE believed was contraband since this was a common hiding place for drugs. 26 minutes into the stop, a K9 team was requested. It wasn’t requested earlier because LE said he was still building reasonable suspicion of another crime. Up to the point before calling in the K9 team and while waiting for the K9 unit to arrive, LE admitted he did not have probable cause to detain defendant, but he spoke to defendant “just to get a further reading off of him. Again, still building that probable cause.”
The K9 team arrived about an hour after the stop. Driver admitted there was a crack pipe in the center console prior to the K9 team sniffing the car. The K9 alerted on the vehicle. Contraband was found in the car and driver, after taking sole possession of everything that was found, was arrested. LE was still investigating the bulge in Krevolt’s pants and intended to take him to the station to question him further. Krevolt was then frisked prior to getting into the cruiser. The bulge turned out to be heroin and crack cocaine, bundled for sale.
Krevolt conceded at the suppression hearing that there was a legal reason for the traffic stop. But he claimed that he was unlawfully ordered out of the car and that the stop was unlawfully prolonged to wait for the K9 team. Addressing the first issue, New Jersey law requires an additional step to be satisfied before LE can order anyone out: that step is a totality of the circumstances amounting to a heightened awareness of danger, warranting an objectively reasonable officer to secure the scene more effectively by ordering the passenger to exit the vehicle. There was no proof that there was a heightened awareness of danger and the observations of LE of both the driver and the passenger prior to ordering them out was not enough to rise to this level. The court qualified the conclusion of LE was a hunch rather than specific and articulable concerns.
As to the second issue, the court found that the detention indeed was prolonged. Appearance of nervousness and providing a conflicting story as to travel was not enough to justify a detention longer than what was necessary to complete a traffic investigation. In fact, the appellate court deemed this a de facto arrest. “Here, we deem it significant that defendant (Krevolt) was detained for the K9 sniff after completion of the stop. LE called the K9 unit merely based on his hunch, without a tip or other suspicions correlating with drug activity or paraphernalia. The detective stated he could not release defendant until driver claimed he owned the Volvo “on the record.” The K9 sniff unconstitutionally prolonged the encounter as to defendant because tasks related to the motor vehicle stop had been completed, that is determining whether to issue a traffic ticket to driver. Subjecting defendant to a K9 sniff of vehicle after completion of legitimate tasks was aimed at “building probable cause,” as LE acknowledged. This was a violation of defendant’s constitutional rights. Since the officers did not possess “a well[-]grounded suspicion” that defendant committed a crime during the extended detention waiting for the K9 unit, the subsequent search of defendant’s person and his arrest are invalid. Hence, the drugs and contraband seized from defendant’s person should have been suppressed.”
Note: This was a pretty blatant fishing expedition and the court found that it was just that. This LE may have been inexperienced, but it was pretty apparent from the record he had a hard time articulating what he saw combined with his training and experience gave him reasonable suspicion for prolonging the stop. In addition, please note that this jurisdiction requires another step before ordering passengers out of the car (New Jersey). Always be in touch with your local prosecutor so you know the specifics of your jurisdiction’s requirements.
People v. Almenteros (New York 2023) 2023 N.Y. App. Div. LEXIS 1131
Traffic Stop; Passenger; Prolonged Detention
Almenteros was the front seat passenger in a vehicle stopped by LE for an unilluminated license plate. They were all questioned (including Almenteros’ two sons, one of whom was the unlicensed driver). Driver became agitated and verbally aggressive and the travel story was a 12 hour round trip for a 30 minute visit with a relative. There were other conflicting travel stories. These were suspicious circumstances as drug source cities were involved and therefore enough reasonable suspicion to continue investigating beyond the traffic stop offense, which allowed time for a K9 team to be called in and which ultimately alerted. Contraband was found under the hood.
Note: Because this is an appellate review of a trial, there wasn’t much in terms of facts. I’m sure there were additional facts here. However, the appellate court found that the conflicting stories and the long drive and quick turnaround between two drug source cities was enough reasonable suspicion to expand the investigation and wait for a K9.
United States v. Rutledge (8th Cir. South Dakota) 2023 U.S. App. LEXIS 5156
Traffic Stop; Prolonged Detention
During a drug investigation, LE found out from a pen register, local trap and trace warrants, and a CI that Rutledge was transporting meth from Colorado to South Dakota using rental vehicles. Additional data as well as tracking data showed that Rutledge’s phone was traveling a particular route. LE were waiting at an intersection they believed Rutledge would drive through. It allowed for all direction of travel and LE saw a white van fail to come to a complete stop. LE was able to stop the van shortly thereafter. Rutledge was the driver and the female passenger was scared and nervous. Rutledge provided his license; the passenger provided the insurance and rental contract. Rutledge fell asleep and was rubbing his eyes a lot. He said he was transitory at the moment and gave a Colorado address rather than the South Dakota one on his license. Less than 10 minutes into the stop, the K9 team arrived. Once informed that the K9 was present, Rutledge’s demeanor changed; he became awake, was tense and nervous. The citation process continued while the K9 sniffed the van and alerted. In a safe in the van ( the key for which was found in Rutledge’s possession), LE found a gun and drugs.
The court first stated that LE had an objective basis for stopping the van for failing to stop at the stop sign and that Rutledge had full opportunity at the trial court level to examine LE about his observations of the failure to stop at the stop sign.
The court then moved on to the prolonged detention issue. Here, K9 arrived ten minutes after LE stopped the white van, sniffed the exterior, and alerted before LE completed a warning ticket for the traffic violation. The district court found that the stop was not prolonged beyond what was reasonably necessary to complete the ticketing process and, in addition, concluded that LE had reasonable suspicion to extend the stop for the K9 sniff. The appellate court agreed the stop was not prolonged so does not reach the issue of whether there was additional reasonable suspicion.
The question whether a traffic stop was unnecessarily prolonged is fact intensive but the validity of a seizure is ultimately a question of law. Prior cases do not clarify the standard of review, and the parties ignored the issue. Here, given the undisputed facts regarding the length of the stop, particularly its short duration, and the reasons given for the time it took to almost complete the purpose of the stop before K9 alerted to the rear of the driver’s side, the district court did not err in concluding that LE did not unlawfully prolong the stop before K9’s alert gave the officers probable cause to arrest Rutledge and search the vehicle.
Note: Court was not impressed with the arguments made by Rutledge, and found that the traffic investigation was not finished prior to the alert of the K9. The K9 team responded quickly so the traffic investigation was uninterrupted by K9 team.
People v. Drain (Illinois 20203) 2023 IL App (4th) 210355
Traffic Stop; Alert as Probable Cause; Prolonged Detention; Reliability Foundation
Drain failed to give a lane’s worth of space or slow down when passing a stationary emergency vehicle displaying hazard lights. Handler pulled Drain over. (There was quite a bit of wrangling as to whether Drain actually violated this law, but suffice it to say, LE doesn’t have to prove that a law was broken, LE just has to prove that a reasonable officer in the same situation reasonably believed the law was broken). Drain gave handler his license and rental contract. Handler told him that he was only going to issue a warning and directed Drain back to his patrol car to do so (this was his custom). Drain claimed he did not know about the law (it was fairly new). Handler began running the several searches that were required when issuing a citation. During this time, handler asked about travel plans. Drain responded that he was going to Macon to visit his grandmother, who was sick. Drain also stated that he planned to spend the night there, but he told handler that he did not have an overnight bag with him. Drain “didn’t appear to be comfortable”. Drain “wasn’t moving a whole lot,” and “his breathing appeared to kind of intensify” as they talked. LE asked Drain if he was “all right” because he was breathing heavily, and defendant responded that he was “out of shape.” At that point, all the responses were back so handler began to write the citation. When asked, Drain said he had a previous misdemeanor, but an additional search of his background indicated a much larger criminal history. During the time handler was still writing, back up arrived and was asked to complete the citation. Handler asked Drain if he could run his dog around the car and Drain consented. Handler then got his K9 out who sniffed and alerted as well as did a final indication on the vehicle. At the time of the final indication, LE was still filling out the citation. Drugs were found in the trunk.
Drain challenged the basis for the stop and the court found that the traffic stop was good. (Discussion of this is irrelevant for our purposes).
The court then went on to the prolonged detention issue. Drain claimed that when handler said his license looked good to go, the investigation was concluded and he should have been released. However, the citation was not completed at that time and the court found that a traffic investigation is not finished until this is completed. However, the court also was required to determine whether the sniff prolonged the traffic investigation. The court held that the traffic investigation was proceeding without delay including the hand off to the back up officer.
The reliability foundation of the K9 team was then questioned. Handler testified that he is a trained K9 officer and that his K9 was trained to alert to narcotics. Handler explained that an alert constitutes “the distinct changes in behavior that I’m familiar with working with the dog itself, so it’s through our training and experience.” Handler further testified that the dog’s “final response can vary,” depending on the location of the drug and could be “a down” or “a sit.” Handler explained that the K9 first gave “a distinct change of behavior on the rear passenger side” of Drain’s vehicle. Handler saw the K9’s nose “get a little birdy and his breathing become more labored as he appeared to be in odor recognition.” Upon reaching the rear driver’s side, the K9 provided a final response by sitting. Therefore, there was probable cause to search the vehicle.
The court went on to hold that it was Drain’s responsibility to challenge the reliability foundation and that even if he did, it would have failed because the government proved that the K9 was reliable.
Note: No real new information here but good example of effective teamwork.
United States v. Covington (3rd Cir. Pennsylvania 2023) 2023 U.S. App. LEXIS 5510 (Unpub.)
Reliability Foundation; Alert as Probable Cause; Cueing
A CI told LE that Covington was a cocaine trafficker. An investigation was launched, including surveillance of Covington. A controlled buy was conducted successfully. Covington was surveilled to a self-storage business. A SW revealed which unit belonged to Covington. A K9 sniffed the unit and alerted. K9 also lightly scratched on a neighboring unit, but handler did not consider that behavior an alert. A second SW for the unit was signed and inside were guns, phones, and controlled substances. There was also indicia for Covington.
Covington complained that the K9 sniff was unreliable, because the K9 was improperly cued, lacked proper training, and falsely alerted for contraband on the neighboring unit. The appellate court disagreed, holding that here, the K9 sniff satisfied the standard that evidence of a K9’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust the K9’s alert. This K9 was certified annually by the National Police Canine Association (“NPCA”), which the the trial court properly considered a “bona fide” training organization. Even though Covington brought an expert to testify that the K9 was not reliable, the appellate court held that the trial court’s conclusion that the K9 was reliable was consistent with the evidence presented. The K9’s alert on Covington’s storage unit was clear and unambiguous—a finding confirmed by video recording. And the trial court did not clearly err in finding there was no improper cuing or bias on handler’s part.
Moreover, the appellate court said, the additional statements in the affidavit are sufficient to show probable cause even without the dog sniff. Although “direct evidence linking the crime with the place to be searched” is ideal, a search warrant may issue “even without direct evidence.” Here, the affidavit described the affiant’s experience in law enforcement; his knowledge of illegal drug trades and attendance at narcotics seminars; his interactions with the informant who implicated Covington, along with a description of how the affiant evaluated the informant’s credibility; the surveillance of Covington at the U-Haul storage facility and, specifically, Covington’s entry into unit 416; U-Haul’s rental records showing Covington as the active renter of that unit; and the reasons why drug traffickers often store their supply in similar storage facilities. That all was sufficient, because “[p]robable cause can be, and often is, inferred from ‘the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide [evidence].
Note: There was no challenge to the K9 sniffing the storage unit even though there was no SW to allow for that. However, that challenge was probably worthless as the law is pretty clear that the a sniff of free air when the K9 team is where they have the right to be is legal and a storage unit does not have a curtilage like a home because there is a lowered expectation of privacy.
Morris v. City of Lakeland (Florida 2023) 2023 U.S. Dist. LEXIS 38965
Excessive Force; Unlawful Arrest; Common Law Battery
LE got a notification that a home invasion burglary was possibly happening based on suspicious noises. The property was a warehouse along with an attached dwelling. The resident said there has been previous break-ins/trespasses. She said she had also called her brother, the other resident, and he said he was not in the warehouse. She was very frightened so she grabbed her dog and went outside. Then her phone died.
Turns out it was her brother and he was joking around with his sister when he said it wasn’t him. He tried to call her back, but her phone was dead. He waited in the residence for her to return or call him back. He did not think she would take it to the “extreme” and call 911.
LE arrived about 5 minutes after the phone call dropped. Sister met with LE a couple of buildings down from her residence. She told LE that she was sleeping in the business and heard a sound as if someone was trying to break in. No one else was supposed to be in the building. This frightened her so she fled the building with her dog. She alleged that she told this officer that her brother was inside because she saw his car parked in the building.
K9 team responded along with other officers. The front door to the dwelling was locked. LE ordered any occupant to come to the door and let them in. There was no response but LE saw someone sneaking around inside the dwelling. Brother then let LE in. He was told to stop and show his hands. He saw a K9 along with other LE assets and closed the door so that only his face was visible because he was afraid of the K9. LE interpreted that behavior differently so kicked the door open and released the K9. K9 bit and held brother’s thigh and took him to the floor. LE commanded brother put his hands behind his back but he did not do so. Brother does not dispute this but said he was trying to communicate that he lived there and was not a burglar. Brother claims he was punched several times before he was able to be handcuffed. Once that was accomplished, the K9 was removed. All this lasted about 2 minutes. Criminal charges against brother were ultimately dropped.
Brother was given medical treatment and the wound did not require stitches or surgery but he did receive additional treatment the next day at the jail. A small cut under his eye did not require medical intervention.
The court first took up the issue of unlawful arrest. Brother was arrested for resisting LE without violence. LE claimed they were justified in their actions. LE was engaged in the lawful execution of a legal duty when they encountered brother. LE was responding to a dispatch call about a burglary in progress at a residence. Brother argues that the officers knew he was a resident of the building because sister told officers that if they saw his car, then her brother was home. There is no indication from the record that the arresting officers knew she said this. LE who acknowledged that he spoke to sister indicated that he did not hear this information. Further, the Detailed History for Police Event does not indicate that she gave this information to the 911 dispatcher or the responding officers. Even assuming sister told LE that her brother was home if his car was there, this still does not mean that the entering officers including the handler knew the person at the door was a resident of the building. No entering officers spoke directly to caller.
As officers investigating an emergency call about a crime, LE including the handler were performing a legal duty. Therefore, the question before the appellate court was therefore whether brother, “by his words, conduct, or a combination thereof . . . obstruct[ed] or resist[ed] . . . that lawful duty.” The Court found that he did.
According to LE, brother unlawfully resisted by failing to follow the officers’ commands, shutting the door, and resisting being handcuffed. LE announced themselves as police and issued a verbal order to open the door. While brother initially opened the door to speak to the officers, he admits that he began closing the door so only his face would be visible. This action alone constituted resistance to the officers’ orders as they conducted a lawful investigation. Brother also resisted arrest when he failed to put his hands behind his back while the officers were attempting to handcuff him. Based on brother’s actions, LE had probable cause to arrest brother for resisting arrest without violence. Therefore the claim of unlawful arrest against LE was dismissed.
The court moved on to the excessive force claims. Brother claimed that unreasonable force was used when handler punched him several times and the K9 bit him. The appellate court held here, handler’s use of force was objectively reasonable. “[S]ome use of force by a police officer when making a custodial arrest is necessary and altogether lawful, regardless of the severity of the alleged offense.” The strikes to his face occurred before brother was handcuffed and while he was resisting arrest. The alleged strikes were in the course of affecting a lawful arrest. Further, the cut on his face did not require any notable treatment. The amount of force brother submits handler used is on par with what the Eleventh Circuit has sustained previously, particularly in cases where suspects resisted arrest. Second, handler did not inflict excessive force through his K9. Handler stated that he released K9 after brother started to close the door because he suspected that brother was a burglar attempting to flee the scene. K9 bit brother’s left leg to prevent him from evading arrest. The bite wounds did not require surgery or stitches and did not cause lasting damage. The appellate court then applied this analysis to the common law battery claim and came to the same conclusion. The motion for summary judgement was granted.
Note: This court did not do a formal assessment of the facts using the Graham v. Connor factors, instead relying on cases from the 11th Circuit (which would have jurisdiction) that talked about proportionality (amount of force v. seriousness of injury). This particular case would probably have come out in favor of LE either way; however, this is a good reminder to be in touch with your union’s representative and local prosecutor to make sure you know what standard is going to apply.
United States v. Hines (8th Cir. Iowa 2023), 2023 U.S. App. LEXIS 5698
Sniff of Curtilage; Good Faith Exception
LE received citizen complaints about possible drug activity at the apartment complex and specifically mentioned Hines’ old apartment as a point of loitering, vehicle traffic and an alleged armed robbery of the occupants next door to Hines.
Handler took his K9 to an apartment complex and had K9 sniff the door of Hines’ apartment and alerted. LE obtained a search warrant with this information, but before it could be executed, Hines moved to another apartment across. The exterior door to the new apartment was locked and not accessible to the general public. However, entrances to the individual units within the building are accessible through a common hallway. With management’s permission, K9 sniffed Hines’ new apartment door and alerted again.
Second search warrant in hand, Hines let LE in, submitted to a Terry frisk and agreed to speak with them. Inside the apartment was controlled substances and over $2K in currency. The trial court held that the sniff at the apartment door was in violation of the curtilage, but LE was entitled to rely on a good faith exception.
The appellate court agreed because at the time of the sniffs in this case, the court had neither expressly overruled Scott nor explained how Jardines applies to apartment doors in a common hallway.
Note: This case was saved by good faith because the subsequent cases on curtilage had not been decided at the time of the sniffs. However, this Circuit is now in line with the federal standard and these two sniffs will be considered curtilage violations from now on.
State v. Balbi (New Jersey) 2023 N.J. Super. Unpub. LEXIS 363
Sniff of A Vehicle; Unlawful Seizure; Alert as Probable Cause
This case was the continuation of a case which was remanded to the trial court to make determinations of fact, so there is no recitation of facts. The issue on remand was the actual behavior of the K9 on this free air sniff of a vehicle.
Handler testified that he was called to the scene of a traffic stop and asked to sniff a vehicle belonging to the driver, Balbi. Handler said his K9 was ready to work as soon as he exited the patrol vehicle. He also stated that the passenger’s window was all the way down and the rear window on that side was about halfway down prior to the K9 performing the search. Handler narrated the K9’s movements in the video while it played during the evidentiary hearing. He explained the dome light from the car’s interior came on because the K9 “bit the door handle” on the front passenger door and the handler “immediately closed the door, continu[ing] on.” However, handler took this to be an alert by the K9 because the K9 also scratched at the door (K9 had an active alert). On cross-examination, handler admitted that K9 had opened doors previously about 5 times and that he did not put in his report that the K9 opened the door. Handler also stated that biting the car door handle was part of the K9’s active alert. The trial court opined that the video showed that handler’s hands were on the K9’s leash and did not come near enough to the vehicle to have opened the car. The trial court found that there was no evidence that showed this K9 was specifically trained to open up car doors and that the K9 never entered the car.
Balbi appealed stating that the opening of the car door during the K9 sniff was an unlawful search. The appellate court found that the trial court found that K9 alerted to the vehicle prior to opening any of the car doors by biting the car door handle prior to opening the car door. Once an alert happens, LE is then in possession of probable cause to search the vehicle.
Note: It is important to remember that the reason the courts came to this conclusion is that the handler testified to how the K9 was trained as an active alert dog and that there were other behaviors that indicated an alert. Also note how fine a line it is from alert to probable cause; here, the bite was an alert that provided probable cause so the opening of the door by the K9 was a lawful entry. (This seems like one super smart K9!)
State v. Gabr (Oregon 2023) 324 Ore. App. 588 (Unpub.)
Traffic Stop; K9 at Traffic Stop
LE had been watching a motel room as the clerk reported unusual traffic (lots of people for short stays) at Room 139. A patrol unit was asked to stop the renter of the room, Gabr, when he drove away. Patrol stopped the car after LE observed a traffic violation. At this point, LE thought they had enough to investigate Gabr for drug offenses so a K9 unit was called to the stop. LE then looked into the car and could see what he thought were loose panels inside the car which made him come to the conclusion that this car was a stash car. K9 team arrived shortly after the call and alerted on the car. Inside the car, LE were unable to find anything but the K9 alerted on the driver’s seat of the car. No contraband was ever found, but during questioning, Gabr admitted to getting an “erotic massage.” So he was prosecuted for that.
The appellate court agreed with Gabr that there was not objectively reasonable suspicion for the officer to call for a drug-detection dog at the outset of the traffic stop. The government conceded that it was illegal to call for a K9 without indication that drugs were involved.
Note: Because this wasn’t a drug case, the government wasn’t interested in the K9 alert or whether the K9 team acted legally or illegally. So they conceded the point because the issue for them was the statements of Gabr re: the erotic massage. This is not good. And in fact, it is not a correct statement of the law. There is no threshhold of evidence needed to call for a K9 team. Thankfully, this case does not have and precedential value, but it’s really important that there are no adverse rulings in case law. Please stay in touch with your local prosecutors and when the case goes to the appellate level, make sure you’re in contact with the government’s representative at that level, so you can educate them on the needs of a K9 unit and necessity of not creating bad law (in this case inadvertently).
United States v. $67,000 in U.S. Currency (Texas 2023) 2023 U.S. Dist. LEXIS 43325
Based on a tip regarding claimant’s suspicious travel, claimant’s checked bag was pulled and sniffed by a drug trained K9 which alerted. The court held that the alert provided probable cause to search the bag.
Note: There was no challenge otherwise to the use of the K9.
Love v. Commonwealth (Kentucky 2023) 2023 Ky. App. Unpub. LEXIS 186
Traffic Stop; Prolonged Detention
During a drug investigation, detectives were following a car which had left a residence that was under surveillance. They asked a patrol officer to stop the vehicle on a traffic violation. The car was eventually pulled over for speeding. The patrol officer knew 3 of the 4 occupants, including Love, had a drug history. The driver was unable to produce a driver’s license and everyone was exceedingly nervous and fearful. The driver denied consent to search. Patrol separated the parties and waited for back up. Once back up arrived, he started working on the citation. There was some back and forth trying to positively ID the driver. Patrol was also eventually able to determine no one had any warrants. During the time patrol was working on the citation, a K9 team arrived, sniffed the car and alerted. At that point, the car was searched and drugs were found.
Love claimed prolonged detention. The appellate court disagreed. The court held that the assessment of reasonable articulable suspicion occurs on a continuum and not in a vacuum. It is not a snapshot of a second or even a minute of the entire interaction. When courts evaluate evidence and apply reported cases to the facts, it is tempting to examine one factor in isolation. Most reported vehicle stop cases involve more than one factor and can usually be distinguished factually.
The relevant factors here were:
(1) LE were conducting surveillance on a residence of a known drug dealer, (2) the occupants of the targeted vehicle had stopped at this residence for a short duration and then proceeded to travel into Hart County, (3) LE suspected that the vehicle contained drugs, pursued said vehicle, and radioed Hart County for assistance, (4) patrol recognized that three of the occupants were known drug users, and (5) patrol found these subjects to be “above and beyond nervous.”
The court went on to hold that when all the circumstances are considered together, patrol obtained additional information by observation and investigation supporting reasonable suspicion of criminal activity pertaining to drug use. The extension for the K9 sniff was a justified extension. With everything else observed, the alert by the K9 supported the required probable cause to search. The evidence obtained was not obtained in violation of Love’s constitutional rights to be free from unreasonable search and seizure.
Note: Interesting that the court did not address whether they even needed to reach this issue because from the statement of facts, it appears that the first delay was waiting for back up for officer safety (4 against 1 without being able to visualize the passenger compartment completely) which is arguably a valid basis for delay. Then there was the call to the K9 team and then patrol started working on the citation and worked on it continuously until the K9 alerted. The court may have just jumped to reasonable suspicion for prolonged detention because it was a clearer issue.
Bowman v. Hunter (Florida 2023) 23 U.S. Dist. LEXIS 45461
Excessive Force; Monell Liability; Negligence
3 LE in a vehicle; one is a K9 handler with his K9. Bowman was pulled over for deficient tail lights. It took a fourth of a mile or so for Bowman to pull over. He said he did this so he could be at his mother’s house and be safe. LE figured he was doing something suspicious.
LE approached with guns drawn and told to put his hands out the window and not to move. Bowman asks if he was going to be shot, why was he stopped at his house, etc. Several more orders were given including that if he didn’t get out the K9 would be released. When he finally got out, he was ordered not to face LE but he continued to face them. Handler yelled, “Last warning!” and deployed the K9. Bowman claimed the K9 bit him in the leg for two minutes, even after he was handcuffed.
LE could not agree whether Bowman was arrested and what he was charged with. He ultimately was charged with fleeing and eluding a peace officer.
Bowman filed a lawsuit against the Sheriff and handler for excessive force, Monell liability, negligence, battery and unlawful detention and false arrest. Both Sheriff and handler filed motions for summary judgement on all theories except excessive force.
The court first addressed the claims against the Sheriff. Here, the Court concluded that Bowman’s factual allegations were simply insufficient to plausibly claim that there was either a policy of the Sheriff to use K9s to inflict excessive force or a practice or custom of using such excessive force, much less that the practice was so widespread that the Sheriff had notice of the practice and made a “conscious choice” to disregard it.
For similar reasons, the court held, Bowman failed to plausibly allege a constitutional violation based upon a failure to train. Notably, Bowman asserts that handler took training courses in “diversity sensitivity,” “traffic stop procedure,” and “de-escalation.” According to Bowman, handler’s misconduct resulted from his “circumventing” that training. Bowman has not alleged that the Sheriff provided no training at all to his K9s to abide by commands and to their handlers to use only reasonable force. Consequently, this is not a case where the Sheriff failed to implement any training in an area where it was patently obvious that constitutional violations would occur without training. Moreover, as discussed above, Bowman has not alleged a pattern of misconduct that would put the Sheriff on notice that the existing training programs were inadequate. Because Bowman has not alleged any specific instances of excessive force from a K9 officer, he has not stated a plausible claim that the Sheriff must have known that K9s and their handlers needed corrective training.
The court then addressed the claims against the handler: unlawful detention/arrest. Handler argued that count should be dismissed because the allegations in the Amended Complaint establish that they had probable cause to detain Bowman for driving at night without illuminated headlights and taillights (apparently forgot to turn them on). Handler also asserted that he could not be liable for the later criminal charges that Bowman faced because the State filed those charges. Bowman claimed that his tail lights were fine and he shouldn’t have been stopped.
The court found here that the allegations of the Amended Complaint establish that handler had probable cause to arrest Bowman. In the Amended Complaint, Bowman alleges that he was driving at night and that he “appeared to have mistakenly not turned his head and tail lights on” when handler spotted his vehicle. Driving at night without lit headlights and taillights was a violation of law. Because handler saw Bowman driving while it appeared that his lights were off, a reasonable officer in their situation “could conclude . . . that there was a substantial chance of criminal activity.” Notably, the Fourth Amendment does not forbid an officer from making a warrantless arrest “for a minor criminal offense,” such as a traffic violation punishable only by a fine. Indeed, Florida law permits LE to arrest those who commit a violation in the officer’s presence. Therefore, because handler (and other LE in the cruiser) had probable cause to believe that Bowman was committing a traffic violation, a decision to stop and arrest Bowman did not violate the Fourth Amendment.
LE also moved to dismiss three of Bowman’s state law claims: negligence against handler and the Sheriff (unlawful detention/arrest).
Here, the Court finds that the negligence claim against handler is due to be dismissed. To the extent Bowman alleges that handler was merely negligent, handler is entitled to statutory immunity. And to the extent Bowman alleges handler acted with a malicious purpose or a wanton and willful disregard for human rights, his actions were the intentional use of excessive force, which cannot support a negligence claim. In either case, Bowman has failed to state a plausible claim for negligence against handler.
The Court also concludes that Bowman has failed to state a negligence claim against the Sheriff. Bowman alleges that the officers assumed a duty of care toward Bowman when they detained him. Bowman asserts that handler breached this duty of care by “failing to keep control over his K9 so as not to inflict severe injuries” and “deploying his K-9 under the facts and circumstances presented.” Bowman pleads that handler’s actions “were intentional and carried out in bad faith and with malicious intent.” These allegations do not assert a claim for “something other than the actual application of force during the course of arrest.” Notably, Bowman does not plead that handler accidentally or negligently released the K9. Rather, Bowman alleges that handler chose to release the K9 to inflict force. And, Bowman’s argument in his Response to the Sheriff’s Motion confirms that Bowman is alleging an intentional act. Because “there is no such thing as the negligent commission of an intentional tort” under Florida law, the Court finds that Bowman has failed to state a negligence claim with regard to the release of the canine.
As to Bowman’s allegations about the K9’s training, the Court concludes that Bowman has not plausibly alleged that the Sheriff may be liable for this training. Bowman asserts that handler “fail[ed] to properly train his K-9 to abide by voice [and lead] commands to release Bowman.” However, Bowman did not pled that handler unsuccessfully ordered the K9 to release Bowman. Therefore, Bowman did not plausibly alleged that negligent training caused any of his injuries. In addition, the Court notes that the Sheriff is immune from suit for his discretionary decisions about “how to train [his] officers and what subject matter to include in the training.’
Note: Count 1, excessive force, was not addressed by this motion. There are a variety of strategic reasons for that, but it means the actual handler is still in the suit. I included this case in this update as it is a great demonstration of what Monell liability is for supervisors and decision makers for K9 units. In addition, note that Florida allows for an arrest on what most states would consider an infraction. Therefore, the stop and detention and ultimately arrest were authorized by Florida law.
United States v. Bell-Johnson (Kansas 2023) 2023 U.S. Dist. LEXIS 45821
Traffic Stop; Inventory Search; Good Faith Exception; Inevitable discovery
LE spotted a box truck with suspended and expired California registration parked near a known drug house. Patrol was asked to follow and stop it. Bell-Johnson was the driver. Bell-Johnson could not provide insurance and handed over an revoked license. Bell-Johnson was then arrested for driving revoked and because the truck had been parked outside a drug house and Bell-Johnson would not meet LE’s eyes, a K9 team was requested.
In the meantime, another LE arrived to conduct a commercial vehicle inspection. The inspecting LE placed the truck out of service. Per policy, LE was required to tow the vehicle and perform an inventory search.
The K9 team arrived about 10 minutes after the request to assist. The K9 was immediately deployed to sniff the truck and handler saw two alerts–one at the driver’s door (K9 stood and stared) and one at the rear of the truck (K9 stopped and stared). When the handler told the arresting officer that the K9 alerted, he put in his report that the dog sat, which didn’t happen.
Later, at a hearing, the handler testified that his K9 probably didn’t sit because it was cold that day and K9 doens’t like to sit when it’s cold. Handler also testified that K9 had other alert behavior as well, but was positive the K9 alerted on the truck twice.
The truck was not searched at the scene because, even though LE had probable cause to search based on the alert, they decided to apply for a warrant.
There also was testimony that the K9 team underwent 160 hours of training to be successfully certified. The team was then certified again by a different organization and K9 had successfully recertified every year. A passing score was 70, but K9 always scored 100. Finally, K9 won a national competition of narcotics dogs. Handler also testified that he did on-going training with K9 for about 32 hours every month.
An expert for Bell-Johnson said that after a review of the body camera footage, he saw three areas of concern. LE at the scene had placed items on the rear of the truck, potentially contaminating the scene for the K9; that there was a discrepancy in reports regarding K9 sitting as an alert; and finally, K9 was not rewarded by handler after alerts which meant to him that the K9 did not actually alert.
The expert also believed that the certification was not enough and that the training records show a more accurate snapshot of the K9’s ability. He claimed that there were no records documenting K9’s stand and stare as an alert. However, on cross examination by the government, they pointed out to expert that there were dozens of notations in the training records that K9 alerted by standing and staring. The expert that admitted he apparently missed that in his review.
The search warrant was based on the K9 alert. The LE authoring the SW relied on what the handler told him: that the K9 alerted, since he did not have the training to make that determination himself.
The court then addressed whether the K9 alerted such that LE had probable cause to obtain a search warrant. Since there was a mistake in the report re: the alert (sat v. stood), there was significant discussion around this issue.
The government presented body camera footage of the K9 sniff at the suppression hearing, and handler testified that K9 had, in fact, alerted twice during his inspection of Bell-Johnson’s box truck. So, even though handler mistakenly reported how one of the alerts was manifested, the other alert—at the driver’s door—on its own established probable cause. So, the court held, this narrow dispute about a second alert is, at bottom, something of a sideshow.
Because one alert is sufficient, and the appellate court found the government proved at least one alert, there was sufficient probable cause to obtain the SW.
The court then turned to the issue of whether the K9’s alert was reliable. The government contended that the K9’s alert was reliable based on the credentials and training record. The K9 was certified and it maintained certification for narcotics detection. The K9 team trained every Wednesday for eight hours, unless called out to duty. The K9 team not only met the baseline certification and training requirements; often, they exceeded them. By all accounts, they were a high achieving K9 Unit, accomplished in narcotics detection.
The defendant’s expert conceded that he wasn’t questioning that certification and he didn’t have an issue with K9’s certification. Instead, the expert testified that he didn’t believe that an annual test sufficed to determine the reliability of a K9 Unit. But an annual test is what the NPCA requires. In short, Bell-Johnson asks the court to side with an expert who doesn’t believe (based on his personal experience) that an annual certification suffices and, instead, hold that this K9 Unit’s performance was unreliable. To be sure, the expert witness is entitled to his opinion. But Bell-Johnson can’t displace the court’s legal standard and replace it with a standard his expert prefers. The K9 team maintained annual certifications from a reputable national organization—the NPCA. This evidence satisfied all that this court required. In sum, the K9 Unit’s alerts furnished probable cause, and despite the mistake in the report, the officers secured a legitimate warrant.
In its Response to Mr. Bell-Johnson’s Motion to Suppress, the government argued that the court shouldn’t exclude the evidence for two additional reasons: (1) the officers acted in good faith when they executed the search warrant and (2) the officers would’ve discovered the evidence inevitably because the truck failed a commercial vehicle inspection. In that situation, BSPD’s procedure mandated a tow and inventory search on the truck even without the K9 sniff or arrest of Mr. Bell-Johnson. There was no response from Bell-Johnson regarding these two assertions. Therefore, the court held that both reasons provide independent grounds to deny Bell-Johnson’s Motion to Suppress.
Note: It’s always important to make sure your reports are accurate. The temptation to use templates from previous sniffs is strong: you are trying to meet the deadlines required by your department and sometimes the paperwork is overwhelming. However, you can see from this situation that the mistake took up a large part of the appellate opinion. Ulitmately, though, the court was sympathetic to the reason for what happened and ended up dismissing that issue. I believe the court was sympathetic because the officers were up front about making a mistake and owned it. There are few minor errors that you can’t recover from as long as you are upfront about the mistake.
State v. Dorff (Idaho 2023) 2023 Ida. LEXIS 30
Traffic Stop; Trespass of K9; When a Sniff is a Search
At a traffic stop, the K9 circled the vehicle, directed his nose close to the vehicle’s seams (nearly touching the vehicle in many instances); entered the wheel well areas with his snout; and reached for the vehicle’s undercarriage with the same. On K9’s second pass, body-camera footage from the on-scene officers shows K9 made two potential contacts, and one explicit contact, with the vehicle’s exterior surface: first, on the rear passenger side of the vehicle (briefly as he jumped up); second, on the front passenger side of the vehicle (again, briefly as he jumped up); and third, on the front driver side of the vehicle—this time planting his front paws to stand up on the door and window as he sniffed the vehicle’s upper seams. During this time, the handler made upward gestures, purportedly “[p]resenting areas for K9 to sniff.” The handler later testified that K9 alerted during his explicit contact with Dorff’s vehicle, i.e., after K9 stood up and put his front paws on the front driver side door and window.
The appellate court explained that simple trespass v. intermeddling is the difference between someone brushing up against you versus puts a hand on or into your purse. In addition, there must be intent to obtain information, at least in this case. Since the drug K9 was being directed by his handler to sniff the vehicle, the intent of the sniff was to find out if there was any odor of controlled substances. Therefore, when the K9 put his paws on Dorff’s car, that transformed a sniff into a search. In addition, the court indicated that they would not entertain a de minimus argument, such that a K9 only brushed his nose against the car.
Note: The court had to do some fancy footwork to contort the law into this decision. They reached back to common law that was in place at the time Idaho was settled as trespass to chattel is not really a thing anymore. However, this is a published case in the state of Idaho since this was an Idaho Supreme Court decision there, even though the federal standard is different (K9 must actually enter the vehicle prior to alert for it to be deemed a search).
State v. Speelman (Ohio 2023) 2023-Ohio-992
Odor of Marijuana as Probable Cause;
Speelman was driving a vehicle which was being driven at 77 mph which was in violation of the speed limit. LE pulled him over and contacted him through the passenger window of his car. LE could smell the odor of raw marijuana coming from the vehicle. Speelman handed over his driver’s license and several expired insurance cards. When asked about the smell of marijuana, he said that he had had people in his car from work (although no timeline was established). As LE continued his investigation, he noted objective signs of intoxication, such as red and bloodshot eyes. Speelman also seemed nervous as he was shaking and breathing heavily. Speelman was asked twice about a medical marijuana card, but denied possession twice. A search of the vehicle revealed paraphernalia and marijuana. Speelman then flunked FST’s and was arrested. He was determined to be double the legal limit of marijuana metabolite.
It was established that LE knew the smell of marijuana and could tell the difference of raw v. burnt marijuana. This was established via training and experience. Therefore, LE’s detection of the odor of raw marijuana was sufficient probable cause to search the vehicle. In Ohio, the fact that illegal marijuana and legal forms of hemp have the same odor is irrelevant so long as some forms of marijuana remain illegal. Thus, any detection of the odor would give probable cause to search.
Note: This is a rational decision based on training and experience of the officer as well as a recognition that the odor of a controlled substance is sufficient probable cause to search as long as there are forms of marijuana that are still illegal.
Minafee v. Bernalillo Cnty. Bd. of Comm’rs (New Mexico2023) 2023 U.S. Dist. LEXIS 53076
Traffic Stop; Unlawful Search and Seizure; Qualified Immunity; K9 Entry into the Vehicle
Two Minafee sisters and a 5 year old child were stopped. The Minafees stated it was because they were black, but handler said it was because the child was not properly restrained. The parties disagreed about almost everything and there was no video until another officer showed up when the driver Minafee was signing the citation for the improper restraint. At some point, handler obtained the keys to the vehicle after all occupants were out. It appears from the video that LE is looking for shoes for the child and left the trunk open. Handler then ran his K9 around the vehicle, including near the open trunk with the K9 partially entering the open trunk. K9 alerted near the trunk. No contraband was found after a thorough search of the passenger compartment and the trunk.
Court held first that the seatbelt violation was sufficient for the initial traffic stop and therefore handler is entitled to qualified immunity on this issue of unlawful detention/arrest. The court then moved on to whether handler’s perception of the odor of marijuana was sufficient to prolong the detention to allow for the deployment of the K9. The court held that this perception as well as an occupant’s admission that marijuana had been smoked in the past in the vehicle was sufficient additional reasonable suspicion for this prolonged detention. Therefore, handler is entitled to qualified immunity on the issue of continued detention to deploy his K9.
The court then analyzes the two searches separately; one of the passenger compartment and trunk before the K9 was deployed and the other one of the entire car after the K9 alert. As for the first search, handler claims he was given the keys to the car voluntarily so that he could retrieve shoes for the child. The Minafees deny that, claiming that LE requested the keys but did not ask if he could search anything. They also assert that the situation created an atmosphere where they were forced to give over the keys (on the side of the freeway with a child). Therefore, there is a triable issue on the subject of whether the initial search of the trunk was constitutional (a search that left the trunk open prior to the K9 alert). However, handler is entitled to qualified immunity as to the passenger compartment as he smelled the odor of marijuana from the passenger compartment.
As to the second search of the vehicle by handler after the use of the K9, handler argued that he developed probable cause to search the interior and trunk of the vehicle. The court then turned to consideration of the issue whether handler was justified, pursuant to the automobile exception, in searching the vehicle’s trunk during this second search. Viewing the facts in the light depicted by the video evidence, the Court concludes there is evidence in the record from which a reasonable jury could find that handler facilitated the K9’s entry into the Minafees trunk without first establishing probable cause in violation of the Fourth Amendment.
Handler justifies the second search of the trunk based on the K9’s alert to the odor of contraband in the vehicle near the trunk. Typically, a certified drug-sniffing dog’s “alert” to the closed trunk of a vehicle indicating the presence of illegal drugs provides probable cause to search the trunk. However, it is clearly established “that officers cannot rely on a dog’s alert to establish probable cause if the officers open part of the vehicle so the dog may enter the vehicle or otherwise facilitate its entry.”
A reasonable jury could conclude that handler had neither consent nor probable cause to search the trunk prior to the use of the K9. When handler conducted the K9 sniff, the trunk was still left open from when he had conducted the first—possibly unconstitutional—search of the trunk. During the K9 sniff, the dashboard camera footage depicts the K9 partially entering the interior of the trunk. Where there is evidence that it is not the driver but the officers who have ‘create[d] the opportunity for a drug dog to go where the officer himself cannot go,’ the Fourth Amendment protects the driver’s right to privacy . . . .” Here, as discussed above, a reasonable jury could find facts to support that LE never had proper legal justification to look through or keep open the trunk of Minaffes’ vehicle in the first search. Then, in keeping the trunk open even after obtaining the child’s shoes, LE facilitated the K9’s entry into the trunk where there was no probable cause to enter. Thereafter, he relied on the K9’s alert of the trunk after the dK9og partially entered the trunk to justify the second search of the trunk.
Note: It is well-settled law that LE cannot do anything to facilitate any entry by a K9 into the vehicle prior to the K9 alerting to the vehicle, even if that entry is minimal. Therefore, even though handler was entitled to qualified immunity on all other issues, he remains subject to a federal civil rights suit based on this one factual basis. This doesn’t reduce his liability in civil court; if a jury finds he violated the Minafees’ rights, it’s up to the jury to determine damages. Take away: Trust your well-trained K9. If there is odor, he/she is going to alert whether the doors, windows or trunk are open or closed. If there is not an alert, push them down the road. If they are committing crimes, they will come around again.
Commonwealth v. Gonzalez (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 778
Traffic Stop; Reasonable Suspicion; Odor of Marijuana
Gonzalez was stopped after committing a traffic violation. He was very nervous, sweating and his chest was moving very fast. He was agitated about the requests LE made of him, saying that the car belonged to a friend, but he couldn’t provide the name.
The area where the stop occurred was a very high drug, high crime area, where LE had made numerous prior drug arrests. Gonzalez was also wearing a fanny back across his chest. This officer had removed similar fanny backs from others and recovered drugs and weapons. While one officer went to run his documents, the other officer asked what was in the fanny pack. Gonzales unzipped the fanny pack a little and closed it quickly. Officer smelled the odor of marijuana as Gonzalez unzipped the fanny pack. LE also glimpsed a large wad of cash. Gonzalez produced a medical marijuana card to the officers in between their detection of the marijuana odor and the search of the fanny pack which uncovered a supply of marijuana.
The court held that LE had sufficient reasonable suspicion to search the fanny pack for weapons, given the elements already discussed, but not for marijuana since the fact that Gonzalez could have marijuana, even though the marijuana may not have been packaged legally or in a legal amount (rendering it magically off-limits to all further inquiries).
Note: Since there was a medical marijuana card produced between the odor of marijuana and the search of the fanny pack, this court held this was an unlawful search, even though the factors that allowed a Terry frisk would have allowed a search of the fanny pack for weapons. This is rather puzzling to me, but thankfully, this is not a published decision.
Hartsell v. Cnty. of San Diego (9th Cir. California 2023) 2023 U.S. App. LEXIS 7417 (Unpub.)
While he was fleeing LE, Hartsell hid in a bush where he was bitten by a K9. Although Hartsell complied with handler’s commands to show his hands after he was bitten, handler did not immediately command the K9 to let go. Instead, handler ordered Hartsell to crawl several feet forward out of the bush before removing the K9 from his arm. At trial, the sole issue before the jury was whether handler used excessive force by failing to release the dog from its bite sooner.
After a jury trial and a finding in favor of law enforcement, the appellate court applied the Graham factors and considering the totality of the evidence, the jury’s verdict was supported by substantial evidence. The evidence at trial showed that handler faced a difficult decision about how to release the K9 safely. Both Hartsell and the K9 were located inside a dense bush, partially secreted from handler’s view. Handler and other officers testified that they are trained to physically remove a biting K9 while simultaneously issuing a verbal command, because it is the safest way to ensure the animal does not bite again. Handler testified that he could not safely enter the bush to physically apprehend the K9, and he feared issuing a verbal command would cause the K9 to bite another part of Hartsell’s body. Based on this evidence, the jury reasonably concluded that handler’s decision to instruct Hartsell to crawl from the bushes before disengaging the dog was not an excessive use of force.
As Hartsell argued, some of the evidence at trial weighed in his favor. He complied with handler’s commands, he was not known to be violent, and he was in his underwear and was unlikely to have a weapon. Nonetheless, “[w]hen each of the Graham factors is analyzed, the record does not ‘permit only one reasonable conclusion . . . contrary to that of the jury.'” In light of the evidence supporting the jury’s verdict, Hartsell is not entitled to judgment as a matter of law (opposite that of the jury).
Note: Since this is an appellate decision, we don’t have a lot of information as to the facts of the situation. However, even though this duration would not be appropriate in some situations, it remains clear that as long as you can fairly, legally and factually explain your actions with your K9, the courts will be able to understand that the force used was reasonable.
State v. Stanford (Ohio 2023) 2023-Ohio-1011
Traffic Stop; Prolonged Detention
LE saw an unusual vehicle pass them that matched the description of a vehicle that had been involved in a shooting a few days prior. The vehicle was lit up, Stanford slow rolled to a stop and LE believed they saw someone throw something out the window. LE approached with guns drawn and told Stanford to turn off the car and throw the keys out the window and then start walking backward to LE. Stanford complied and he was handcuffed. One officer started the process of confirming this vehicle was the one in the shooting while the K9 team arrived at that point. The K9 team first canvassed the area where the item was believed to be thrown. LE told Stanford they were waiting for confirmation of the status of the vehicle before proceeding so as to not contaminate a potential crime scene (the car itself). About 16 minutes after the stop, LE got information that this car was not in the shooting. At that point, the K9 team free-air sniffed the vehicle and the K9 alerted. Cocaine was found in the car.
In his motion to suppress, Stanford did not challenge the basis for the stop because his vehicle was rather rare and did match an initial description of the involved vehicle. The only issue was whether the stop was unduly prolonged.
The court held that the facts elicited from the motion-to-suppress hearing support the trial court’s findings that police stopped Stanford’s vehicle because his unusual vehicle matched a description of a vehicle that had been involved in a recent shooting, and the K9 arrived on the scene contemporaneously with the initial stop. While waiting for detectives to return their call, police used the K9 to sniff a grassy area near the vehicle, based on an officer’s belief that Stanford had thrown an object out of the vehicle window. Once the K9 completed searching the hill, and after officers spoke with the detectives regarding the shooting investigation, police immediately used the K9 to sniff Stanford’s vehicle.
The court held that LE did not prolong Stanford’s detention prior to using the K9. Therefore, the trial court did not err in overruling Stanford’s motion to suppress.
Note: Interesting case. Not sure why LE didn’t have the K9 team immediately sniff the vehicle after searching for the item thrown from the vehicle. But perhaps LE thought that might be problematic if the vehicle did turn out to be the one in the shooting. In any event, the court held that the traffic investigation was properly suspended until LE could confirm whether the vehicle was involved in another crime and that the traffic investigation resumed after that. Since the K9 alerted right away, the clock was suspended again.
People v. Castro (California 2023) 86 Cal. App. 5th 314
Consensual Contact; Odor of Marijuana as Probable Cause
This is a review of a case that I wrote about back in the December 2022 Update, People v. Castro (2022) 86 Cal.App.5th 314. In the second Appellate District of California (Los Angeles case), which was unpublished and therefore uncitable until December of 2022. The court held back in November 2022 that a warrantless search of Castro’s car, during which LE discovered a handgun, fell within the automobile exception to the Fourth Amendment’s warrant requirement. Based on the strong odor of burnt marijuana emanating from Castro’s car, Castro’s admission he had smoked marijuana, and the fact all occupants of the car were under 21 years of age, LE had probable cause to believe they would find contraband or evidence (e.g., marijuana possessed by someone under 21) of a crime in the car. The belief by one of LE that there was still marijuana in the car based on the current smell of marijuana coming from inside the car was reasonable under the circumstances of this case, discussed below.
Two gang detectives were in a marked patrol car when they saw two males sitting in a car parked on a public street. The registration was expired. As they approached, they could smell a strong odor of burnt marijuana as both windows were down.
LE made contact with the driver, Castro and the passengers (one in front seat and one lying down in the back seat). LE knew from prior contacts that the passengers were under 21. Castro said he was 20. When asked, Castro said he smoked earlier. All three were ordered out of the car for an investigation of possession and consumption of marijuana under the age of 21. In the car was a Xanex pill, ammo and a loaded 9mm handgun. After Miranda, Castro admitted the gun was his. He filed a motion to suppress which was denied by the trial court. He appealed that ruling.
Castro complained the motion to suppress should have been granted because the vehicle search did not fall within the automobile exception to the Fourth Amendment’s warrant requirement.
Here, when the officers approached Castro’s car because of the expired registration, LE noticed a “strong odor” of “burnt marijuana” emanating from the car. LE exited the patrol car to contact the driver (Castro), and he observed the two male passengers who he knew to be minors based on prior encounters with them. It is unlawful for a person under 21 years of age to possess any amount of recreational marijuana. (See Health & Saf. Code, § 11357.) LE asked Castro if they were smoking, and Castro responded affirmatively, adding that he had smoked marijuana two hours earlier. Castro also told LE that he was 20 years old. LE testified he had reason to believe that there was still marijuana in Castro’s car based on the current smell of marijuana coming from inside the car, and Castro’s admission he had smoked marijuana. The appellate court therefore held that LE had probable cause to search Castro’s car because, under these facts and circumstances, his belief that contraband or evidence of a crime (e.g., marijuana) would be found in the car was reasonable.
Castro then punted with the argument that marijuana is legal for recreational use and asserted, “In light of the passage of Proposition 64, police may no longer search an automobile simply because they smell marijuana inside a vehicle stopped for an expired registration.” The court of appeal held that Proposition 64 was not relevant here.
In 2016, the voters passed Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized the possession of up to 28.5 grams of cannabis by individuals 21 years or older. Health and Safety Code section 11362.1, added by Proposition 64, fundamentally changed the probable cause determination by specifying lawfully possessed cannabis is not contraband and lawful conduct under the statute may not constitute the basis for detention, search or arrest. But this applies only to activities deemed lawful by Proposition 64. It was unlawful for Castro and his minor passengers to possess any amount of recreational marijuana due to their age.
Castro asserted that the police could neither arrest nor cite him for underage smoking of marijuana committed outside their presence. This assertion was immaterial to the legal question before the court of appeal—whether LE had probable cause to search Castro’s car under the automobile exception. Where probable cause to search a vehicle under the automobile exception exists, a law enforcement officer may search the vehicle irrespective of whether the offense is an infraction and not an arrestable offense.
Based on the “strong odor” of “burnt marijuana” emanating from Castro’s car, Castro’s admission he had smoked marijuana, and the fact all occupants of the car were under 21 years of age, LE had probable cause to believe they would find contraband or evidence of a crime (e.g., marijuana possessed by someone under 21) in the car. The court was unpersuaded by Castro‘s argument that probable cause did not exist because he told LE he had smoked marijuana two hours before. LE’s belief “that there was still marijuana in the car based on the current smell of marijuana coming from inside the car” was reasonable under the circumstances of this case. Accordingly, the court held that LE had probable cause to search the car under the automobile exception, and the trial court did not err in declining to suppress the evidence from the vehicle search.
Note: This case is important, because it highlights the state of the law and that is if marijuana is possessed illegally, then LE can continue to investigate that crime and if it takes place in a vehicle, LE has probable cause to search the vehicle under the automobile exception. Take a minute to reacquaint yourself with the ways marijuana is not legally possessed as that may be your key into extending your investigation so that you can deploy your K9.
Commonwealth v. Brodie (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 793
Traffic Stop; Prolonged Detention; Reasonable Suspicion
Brodie was stopped because of the heavy tint of his windows and because there was significant damage to the hood of his car. When LE contacted him, he could smell an odor of marijuana. Based on this, LE told him to get out of the car. LE then Terry frisked him and found a large lump of money. In response to LE’s questions, Brodie explained the damage to his vehicle had been caused by a recent accident, and he stated there was more money in the car. Brodie also admitted he was on state parole and did not have a driver’s license.
A K9 team was requested and after a “sweep”, the K9 alerted. A search of the vehicle revealed a vial of marijuana, almost $39K in cash, two cell phones, a computer, a tablet and a duffle bag containing a piece of vacuum-sealed bag and dryer sheets.
After conviction, Brodie claimed that the trial court erred in not granting his motion to suppress. The appellate court addressed first whether there was a reasonable suspicion to detain Brodie longer than for a traffic stop. LE described Brodie’s demeanor during the interaction as extremely nervous, opining that Brodie was looking for an escape route. After LE removed Brodie from the vehicle and asked whether it contained anything illegal, Brodie looked back toward the car and had difficulty maintaining eye contact. LE also reviewed Brodie’s criminal history and discovered multiple prior offenses. The K9 then alerted to Brodie’s vehicle. Ultimately, LE testified that he conducted the warrantless vehicle search based on the odor of marijuana, Brodie’s nervousness, Brodie’s criminal history and status as a parolee, and the K9’s positive alert. The court then held that the K9 alert was itself sufficient to provide probable cause. The K9 alert, in combination with the additional circumstances, provided probable cause to search Brodie’s vehicle.
Note: There was no real issue of prolongation as the K9 sniff. Also not discussed was Brodie’s parole status because anyone on parole is subject to a 4th Amendment waiver or they don’t get paroled. So lots of avenues of admissibility, but this appellate court only had to use one to find the search valid.
United States v. Howard Davis (Louisiana 2023) 2023 U.S. Dist. LEXIS 54423
Traffic Stop; Pretext Stop; Prolonged Detention
LE stopped Davis for lane violations and tail-gating. The LPR reader in LE’s cruiser showed that this car from North Carolina had been in North Carolina the day before and Dallas, Texas the night before. Davis had a couple of divergent stories about his travels. The car was registered to a woman and Davis described her as his wife, then his fiancee. The registration however was expired and in someone else’s name. Davis started digging around in the car to find the correct registration, so LE engaged him in casual conversation. LE also noted a bunch of air fresheners (the odor was also overwhelming) and empty energy drinks.
LE then went back to his cruiser to start his investigation where he learned that Davis had a criminal history, including charges for trafficking cocaine, illegal firearm possession, flight from police, and resisting an officer. LE radio’d for a K9 team at that point. He also started filling out a consent to search as he wanted to search the car.
When LE went back to the car, Davis was on the phone with his significant other. With her help, Davis found the registration which put the his significant other as the registered owner 13 days prior. LE knew that drug dealers often re-register plates to confuse the LPRs. Davis also refused consent to search. After more BS about his travels, LE told him he was detained until a K9 team could arrive and sniff the car. When told to empty his pockets, he had a large amount of cash.
The K9 team arrived about 8 minutes after Davis denied consent. The K9 alerted and 4.5 kilograms of cocaine were found.
Davis did not challenge the reason for the stop, but did argue that the stop was pretextual and was unreasonably extended without reasonable suspicion to believe that Davis was engaged in criminal activity. Davis argues that all evidence seized as a result of the extended stop should be suppressed.
Davis argues that the stop was pretextual and that the actual reason for the stop was to conduct a narcotics investigation. Davis points to LE’s use of the LPR system to track the vehicle’s movements prior to initiating the stop. But an officer may stop a motorist for a traffic violation even if, subjectively, the officer’s true motive is to investigate unrelated criminal offenses.
Davis also argued that the stop was unlawfully extended to conduct a narcotics investigation. The extension of the stop was justified because LE had reasonable suspicion to believe that Davis was engaged in criminal activity. Wardell initially decided to stop Davis for following too closely, so he ran a series of LPR queries as he navigated through traffic to catch up to Davis. The queries showed that the car had traveled from North Carolina to Dallas the day before. Davis also had strange gaps in details in his travel history, he described the registered owner is contradictory ways, claimed to be in Shreveport when clearly he had not been, the re-registration of the car 13 days prior, the multiple energy drink cans and the large amount of air fresheners were all indicators of Davis being a drug courier.
Even before Davis located the current registration, LE had ample reasonable suspicion to continue the detention. Therefore the stop was lawfully extended to dispel his reasonable suspicion that Davis was engaged in drug trafficking. The extension lasted for only about eight minutes until K9 arrived and alerted to provide probable cause to search the car.
Note: Pretty straightforward case. There were other issues in the case, but none that are relevant here.
State v. Hartwig (Wisconsin 2023) 2023 Wisc. App. LEXIS 327 (Unpub.)
Traffic Stop; Reasonable Suspicion; Prolonged Detention
There was an unoccupied car parked in a boat launch parking lot with a purse on the seat. It was late, cold, dark and icy. LE checked the area for a possible person in distress and then called in the plate to try to figure out what was going on. As she waited for a return, a Jeep pulled up next to the car. A woman got out, looked at the marked LE cruiser and got into the driver’s side of the parked car. LE couldn’t tell if the woman was a juvenile. At that point, LE’s original inquiry into the safety of the car’s driver changed to an investigation of suspicious activity by both the woman and the driver of the Jeep, and she expected them to stay there until she completed the investigation.
LE turned the emergency red and blue lights on top of her squad car and walked over to the passenger side of the car the woman had entered. The woman rolled down the front passenger side window, and LE smelled an odor of marijuana coming out of the car; LE could not determine whether the smell was coming from the woman or the car.
The woman said that she was 20 years old, had not been smoking and never used marijuana, and just came from Noah Hartwig’s house and was being dropped off by Hartwig. LE knew that Hartwig’s house was about one mile from the boat launch and was familiar with Hartwig because LE had previously seen Hartwig in the county jail and heard that he “was known to use controlled substances” in the past. Because the woman told LE that she did not use marijuana, LE considered whether the odor of marijuana was coming from her person after she had been in the Jeep. At that point, LE was pursuing a drug investigation.
LE returned to her squad car to enter the woman’s information and called for a K9 team to sniff both the parked car and the Jeep.
LE then went to the driver’s side of the Jeep to identify Hartwig and investigate whether “there was drug activity going on between” him and the woman. Hartwig was smoking a cigarette and LE did not detect any odor of marijuana from Hartwig’s person or the Jeep. Cigarette smoke generally masks the odor of fresh marijuana but not necessarily burnt marijuana; LE could not recall whether the odor she smelled at the woman’s car was of fresh or burnt marijuana. Hartwig explained why he was there, and there was nothing “suspicious” about his explanation. Specifically, both Hartwig and the woman explained that they had gone to his house and she left her car in the boat launch parking lot because the driveway at Hartwig’s house had a lot of cars there, leaving no room for her to park there.
LE asked when Hartwig last smoked marijuana and he said, “I don’t have to answer that question.” LE then asked Hartwig for his driver’s license and he gave it to her. Hartwig asked LE why she was stopping him and she answered, “Because of suspicious activity.” Hartwig believed he could not leave due to the cruiser behind him with lights on.
Hartwig claimed he was giving the woman a ride because it was cold, dark and icy. She had been a visitor at his home nearby and since there was limited parking, she parked at the boat launch.
LE returned to her squad car with Hartwig’s license and still had the license when the K9 team arrived about 20 minutes later. The K9 indicated on both vehicles.
The government conceded that both the woman and Hartwig were detained for an investigatory stop when LE parked the squad car behind their vehicles and turned on the emergency lights. The government also asserted that LE properly engaged in a bona fide community caretaker function when at that point LE detained the woman and Hartwig based on a reasonable concern for the woman’s safety. Hartwig argued that the record provides no support for the application of the community caretaker exception to LE’s investigation of Hartwig. The government further argues that it was reasonable suspicion that a crime had been committed, not the community caretaker exception, that warranted LE’s extending the stop “to make contact with” Hartwig.
The court assumed, without deciding, that LE properly engaged in a bona fide community caretaker function when LE initially detained both the woman and Hartwig. And the court also assumed, without deciding, that LE had, in addition, reasonable suspicion to extend the initial stop to investigate Hartwig after LE smelled the odor of marijuana through the open window of the woman’s car and the woman both denied ever using marijuana and gave a potentially dubious explanation as to why she parked in the lot. However, LE lacked reasonable suspicion to further detain Hartwig when: Hartwig provided the information LE requested including an explanation of why the woman parked in the lot that mirrored the explanation given by the woman which Hartwig had not overheard; the running of Hartwig’s license and information revealed no concerns; and LE did not smell the odor of marijuana from Hartwig or his Jeep. That is, at that point LE the officer lacked reasonable suspicion that Hartwig had committed or was about to commit a crime and was obligated to let him go.
The government also argued that the absence of any odor of marijuana from Hartwig or the Jeep did not remove LE’s suspicion because Hartwig was smoking a cigarette and LE testified that cigarette smoke may have masked the odor of marijuana. However, LE’s suspicion did not reasonably remain when Hartwig was smoking a cigarette absent additional articulable facts that would have reasonably permitted the inference that Hartwig had used or possessed, or was using or possessing, marijuana. Given the totality of articulable facts identified above, such an inference was unreasonable.
The government also argues that the 20 minutes it took for the K9 officer to arrive was not unreasonable. However, there is no evidence that LE needed the 20 minutes to run Hartwig’s license and information and learn that there were no new concerns that might warrant continuing with the stop. Moreover, the isolation of the time that elapsed disregards the totality of circumstances identified above, which establish that LE unlawfully extended the stop to request the K9 sniff when LE no longer had reasonable suspicion that Hartwig had committed, was committing, or was about to commit, a crime.
Note: The government tried here, but there was very little to show that the either of the individuals were engaged in any criminal activity. There was the smell of marijuana but absolutely nothing else seemed to back that information up. Therefore, the fact that the K9 alerted to both cars was not useable, as the prolonged detention made this sniff unconstitutional. I think it’s interesting that this odor of marijuana was not considered probable cause in itself because marijuana was still illegal in Wisconsin. Also telling that there was no conversation with the woman about whether she had been taken against her will or any discussion about any help she might need. Had that happened, the community caretaking argument might have been viewed more liberally.
Colyer v. Jerrett (Indiana 2023) 2023 U.S. Dist. LEXIS 54751
Excessive Force; Heck Doctrine; Qualified Immunity; Monell Liability
At approximately 10:00 p.m., LE were dispatched to a local CVS drugstore in response to a request that had been called in to the 911 dispatcher by the mother-in-law of Plaintiff Mark Colyer. The caller reported that she had become frightened of Colyer, who was currently located inside her residence, and was requesting that the police accompany her to make sure she could safely return to her home.
Among the officers who responded to the dispatch included a K9 team. Prior to accompanying Colyer’s mother-in-law to her home, LE had obtained an arrest warrant for Colyer that had been issued for felony charges that included Strangulation, Battery Resulting in Serious Bodily Injury, and Intimidation. A prior attempt to serve this warrant, according to information provided to LE, had occurred at the same location four days prior, but failed when Colyer had fled from the scene. Dispatcher had forewarned LE that Colyer might be armed and dangerous.
When LE arrived accompanying Colyer’s mother-in-law, 2 LE positioned themselves in an alley next to the residence. The rest positioned themselves at the door to the residence. Colyer’s mother-in-law entered the home and returned quickly outside to inform LE that Colyer was upstairs. Colyer’s wife, Sarah, was also inside the residence. Using her key, the mother-in-law re-entered the residence from the front porch along with LE. LE who remained posted outside in the alley saw Colyer exit the house through a back door, jump a fence and begin to run from the area. He explains that he was not fleeing the police, he simply “did not want to be around [his] crazy mother-in-law” so he “left … to avoid [her].” Handler and another officer immediately took up pursuit, shouting instructions to Colyer to stop while also identifying themselves as police.
Colyer does not dispute that he fled through the back door of the house into the yard (“kennel area”) and jumped a small fence, but claims he never heard any warnings, there were no LE giving chase, and therefore he didn’t run from LE. He claimed he was actually running from his crazy mother-in-law. When he did notice an officer, he stopped immediately and put up his hands. He claimed handler didn’t notice him stopped until he said, “I give up.” So the handler released his K9 on him and then kicked him 4-5 times, while yelling, “Stop resisting.” Another officer came up and kicked him in the face.
LE contended that when they saw Colyer running and jumping the fence in the backyard, they called to him to stop and when he failed to do so, handler released the K9, which apprehended Colyer. Having been advised that Colyer might be armed, handler and other officer ordered Colyer to show his hands, and, when he did not, the other officer applied a straight leg kick to Colyer’s upper chest and face to secure compliance. Colyer was then transported to the local hospital for treatment of his injuries from the dog bites and the kick.
LE pointed out that since Colyer pled guilty to resisting arrest in connection with these events, which invokes the Heck doctrine so he cannot now dispute any of the facts underlying the charge to which he pled guilty. But “[a] Section 1983 claim for excessive force where the plaintiff has been convicted of resisting law enforcement does not automatically lead to the conclusion that the plaintiff’s claim is Heck barred.” A plaintiff may claim, for example, “that the force used upon him was excessive in relation to his level of resistance” or that he had stopped resisting at the time the excessive force was used against him “without necessarily challenging his conviction for resisting law enforcement.” The court found that a jury could find that although he initially fled from the police, at the time officers released the K9 and repeatedly kicked him in the face, he had stopped resisting and was complying with the officers’ orders. Colyer could be guilty of resisting arrest based solely on his initial act of fleeing and failing to stop when ordered to do so, but then have stopped resisting prior to the alleged use of excessive force by the officers. Accordingly, his excessive force claim is not Heck-barred as his version of the facts supporting his excessive force claim does not necessarily imply the invalidity of his resisting arrest conviction.
The court then took up the issue of qualified immunity. However, the court held that there was too much conflicting evidence to make a determination at the summary judgment stage. If Colyer’s position was to be believed, then a reasonable jury could find the use of such force was excessive under the circumstances. Moreover, because an individual’s right not to be subjected to force when subdued and complying with officers’ orders was clearly established at the time of Colyer’s arrest, LE is not entitled to qualified immunity.
The conflicting testimony between Colyer and the individual defendants does not conclusively establish whether LE and/or handler applied unnecessary force to Colyer; whether Colyer was complying with the officers’ orders at the time force was used against him; and whether LE was present at the scene with the other two officers at that time. It is not within the appellate Court’s purview to make credibility determinations or weigh the evidence at the summary judgment stage to resolve these issues and a jury will therefore be required.
Monell liability was the next issue addressed by the court. The appellate court held that Colyer failed to produce any evidence that the City was aware of a pattern of criminally reckless conduct on the part of the individual defendants (LE) such that the need for additional training was obvious. Colyer cannot rely solely on the allegations in his complaint to survive summary judgment. Accordingly, the City was entitled to summary judgment in its favor on Mr. Colyer’s Monell claim.
Note: The Heck doctrine is useful for the government, but it is critical that the prosecutor in charge of the resisting arrest case define which actions by Colyer (or any defendant) were part of the resisting arrest. I’m sure there are more nitty gritty details then this here, but the prosecutor could file a statement saying something like, “Colyer resisted arrest by running from officers who told him to stop and by resisting arrest by failing to present his arms for handcuffing.” This would cover all the behavior up and until his claims of being kicked, etc.
It also seems that no specific K9 warnings were given but that doesn’t seem to be a contested issue, so apparently K9 specific warnings were given as required by law. In addition, the lack of body cam really showed here. Colyer’s position and LE’s are so different that a body cam would have been super helpful.
Warfield v. Commonwealth (Kentucky) 2023 Ky. App. LEXIS 24 (Unpub.)
Traffic Stop; Reasonable Suspicion
LE stopped a car in which Warfield was a passenger for seatbelt violations by all occupants. LE asked the driver for the usual documents which she then started searching for within the car. While this was going on, LE noticed that Warfield had a bag that contained an unlocked bag that appeared to contain methadone. In Kentucky, these bags are required to be locked (zipped) to limit the potential of diversion of methadone to the streets. When asked, driver said they had been to a methadone clinic. Both produced licenses but driver was still looking for insurance paperwork. LE returned to his cruiser to start the citations. However, when he looked back at the car, driver was holding her insurance paperwork out the window. He retrieved it and then found that both occupants were clear. He also called for a K9 team. He then did another search of a different database and found out that Warfield had a pending case for trafficking drugs. He finished writing the citations and asked the driver to step out so he could explain. Permission was refused to search the vehicle. The K9 team arrived after the tickets were printed. However, it was shortly after explaining the citation that the K9 alerted on the vehicle. A search of the vehicle revealed controlled substances.
Warfield argues the police improperly extended the stop beyond completion of the stop’s purpose — to issue citations for failure to wear seatbelts. However, the evidence presented at the suppression hearing is that LE’s reasonable suspicions were raised when he saw the unlocked methadone bag and Warfield searching for her identification inside; Warfield’s behavior caused him to believe she was under the influence of drugs or alcohol; and driver exhibited a greater than expected level of nervousness.
LE’s database search and K9 sniff were not, per se, an unlawful extension of the traffic stop. LE may extend a traffic stop beyond completion of its purpose when something happens during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity [is] afoot.
LE’s suspicions in this case include his observation of an unlocked and open methadone bag which his experience told him must remain closed and locked. He also believed Warfield’s behavior was consistent with someone who is under the influence of drugs. LE articulated to the trial court that he inferred, based on these observations and his experience and training, that drug-related activity was afoot and convinced the trial court the inference was reasonable.
Note: Warfield absconded after being placed on probation, but Kentucky law allows the appeal to go on without her presence. A warrant was issued for her arrest a year prior.