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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from July 2021. (A caution here: some cases are unpublished (Unpub.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. In addition, the arguments in these cases can be used; the case just can’t be cited as precedent in court.)

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 not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. As I did last month, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state. If you would like me to address a particular issue, please feel free to email, text or call me.

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



Senate Democrats released details of a long-awaited legislative proposal to federally decriminalize and regulate the sale of cannabis, while using tax revenues to reinvest in communities harmed by marijuana prohibition. This new bill is aimed at removing federal penalties for marijuana, expunging criminal records for nonviolent offenders of federal cannabis laws, earmarking funding for restorative justice programs, establishing tax rates for cannabis products and formally allowing states to decide whether to legalize pot. The U.S. Food and Drug Administration and units of the U.S. Treasury would assume powerful roles in setting policy around the drug, while other agencies would gain new abilities to dole out grants and conduct research.  “While it wouldn’t tell Nebraska you have to legalize marijuana, it would say you have to allow marijuana that’s being transported from California to Ohio to be able to pass through on your interstate highway system,” said Justin Strekal, political director of the National Organization for the Reform of Marijuana Laws. “That is going to trigger a tectonic shift in thinking.”

Senate Majority Leader Chuck Schumer, D-N.Y., acknowledged that the marijuana decriminalization bill he co-authored does not yet have the support it needs to become law, but affirmed that he and his colleagues would prioritize it over more modest cannabis reforms.

A bipartisan group of U.S. senators have thrown their support behind legislation that would expand the eligibility for some defendants to seek the expungement of certain nonviolent, first-time simple federal drug possession offenses from their criminal records.

Pew Research polling shows that about 60% of Americans support legalization of marijuana for recreational and medical use.


New Hampshire lawmakers sent the governor a bill broadening the state’s medical marijuana program to include patients struggling with opioid addiction. While New Jersey has decriminalized personal amounts of marijuana, they retain their medical marijuana program. California has also retained their medical marijuana statutory scheme and the case law that interprets it. A medical marijuana defense is still available to defendants in California and other states which have medical marijuana programs.

Ohio activists submitted a revised petition to put marijuana legalization on the 2022 ballot after the state attorney general had deemed previous summary language misleading. The development comes as some state lawmakers are also pushing a separate plan to legalize cannabis.

Michigan Gov. Gretchen Whitmer signed legislation to regulate a hemp-derived form of THC that she said is being sold throughout the state without being tested and regulated, bringing it under the purview of the Great Lake State seed-to-sale tracking system.

California has established a centralized Department of Cannabis Control that consolidates the state’s licensing and regulatory cannabis programs, a move that is intended to simplify the state’s oversight, improve access to licenses and help out local businesses.

The Brooklyn district attorney’s office has tossed nearly 3,600 cases related to marijuana offenses, the latest prosecutorial office in New York City to turn the page on an area of law enforcement that has weighed more heavily on people of color for decades. (This jurisdiction is the borough of Brooklyn, like a county in other states. Its jurisdiction has made a decision to handle marijuana crimes differently than the state of New York).


United States v. Garth (Utah 2021) 2021 U.S. Dist. LEXIS 141972 – Traffic Stop; Prolonged Detention; Reliability Foundation

People v. Sarente (California 2021) 2021 Cal. App. Unpub. LEXIS 4982 – Traffic Stop; “Legal” Amount of Marijuana as Probable Cause

State v. Jones (Ohio 2021) 2021-Ohio-2621 – Traffic Stop; Prolonged Detention

Garrett v. Virginia (Virginia 2021) 2021 U.S. Dist. LEXIS 141630 – Inmate Complaint; Excessive Use of Force

Johnson v. Fla. Dep’t of Corr. (Florida 2021) 2021 U.S. Dist. LEXIS 141108 – Tracking/Trailing Evidence

New York v. Sanchez  (New York 2021) 2021 N.Y. App. Div. LEXIS 4687 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Lillich (8th Cir. 2021) 2021 U.S. App. LEXIS 22466 – Consensual Encounter; Prolonged Detention

Rodgers v. Hyatte  (Indiana 2021) 2021 U.S. Dist. LEXIS 139625 – Excessive Force; Heck Doctrine

Devine v. Phoenix Police Dep’t (Arizona 2021) 2021 U.S. Dist. LEXIS 138158 – Excessive Force

Johnson v. K 9  (Virginia 2021) 2021 U.S. Dist. LEXIS 133966 – Excessive Force; Eight Amendment Violation; Liability of Bystanders; Liability of Supervisors

United States v. Henderson (Georgia 2021) 2021 U.S. Dist. LEXIS 134131 – Traffic Stop; Prolonged Detention

State v. Maffey (Ohio 2021) 2021-Ohio-2460 – Traffic Stop; Prolonged Detention; Inevitable Discovery Doctrine

Fuentes v. State (Oklahoma 2021) 2021 OK CR 18 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

United States v. Munoz (Kentucky 2021) 2021 U.S. Dist. LEXIS 132614 – Traffic Stop; Prolonged Detention

United States v. Vasquez (9th Cir. 2021) 2021 U.S. App. LEXIS 20963 – Traffic Stop; Odor of Marijuana as Probable Cause

State v. Ponce (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 223 – Traffic Stop; Prolonged Detention

People v. Burroughs (Illinois 2021) 2021 IL App (4th) 190554-U (Unpub.) – Traffic Stop; Prolonged Detention

Burley-Carter v. State (Maryland 2021) 2021 Md. App. LEXIS 595 – Traffic Stop; Prolonged Detention; Fruit of the Poisonous Tree

United States v. Edwards (Georgia 2021) 2021 U.S. Dist. LEXIS 130794 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

United States v. Spikes (Colorado 2021) 2021 U.S. Dist. LEXIS 128942 – Traffic Stop; Prolonged Detention; Reliability Foundation

Mitchum v. City of Indianapolis (Indiana 2021) 2021 U.S. Dist. LEXIS 129134 – Excessive Force; Qualified Immunity; Monell Doctrine

United States v. Markeith (Georgia 2021) 2021 U.S. Dist. LEXIS 129159 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Owens (Maine 2021) 2021 U.S. Dist. LEXIS 130244 – Traffic Stop; Prolonged Detention

Thompson v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 404 – Traffic Stop; Detention; Odor of Marijuana as Probable Cause; Community Caretaking Duty

State v. Lelm (North Dakota 2021) 2021 ND 118 – Traffic Stop; Search Incident to Arrest; Alert as Probable Cause; Inevitable Discovery

Brown v. Kazmierski (7th Cir. 2021) 2021 U.S. App. LEXIS 19962 – Traffic Stop; Reasonable Suspicion for Detention; Prolonged Detention; Alert as Probable Cause; Terry Frisk

United States v. Garmon (Virginia 2021) 2021 U.S. Dist. LEXIS 126338 – Traffic Stop; Prolonged Detention

Sanz v. City of Vallejo (California 2021) 2021 U.S. Dist. LEXIS 122764 – Excessive Force

State v. Brown (Ohio 2021) 2021-Ohio-2193 – Prolonged Detention


United States v. Garth (Utah 2021) 2021 U.S. Dist. LEXIS 141972
Traffic Stop; Prolonged Detention; Reliability Foundation

Around 0944, Utah LE stopped a truck towing a BMW on a flat bed trailer for speeding and no license plates. The stop was not challenged on appeal. Wilmoth was the driver and Garth was the passenger and both were California residents. Based on answers to routine questioning, LE began to suspect the vehicle might be stolen. In addition, the BMW had a plastic tote on the roof which he had seen before as used for controlled substances. ID’s were checked and returned and citation given to driver by 1011. Garth claimed he had no keys for the BMW or the container. When LE asked Garth to get out and read the VIN, Garth was too nervous so LE looked himself. LE asked for permission to get up on the trailer to look at the plastic tote. Garth said, “Sure.” LE was able to stick his hand inside the locked tote and felt items inside. LE then called for back up as he could not confirm the status of the BMW. The VIN was run and the BMW had been stolen in the past and then registered to Garth in 2015. This was inconsistent with the information given by Garth to LE.  After back arrived, LE deployed his K9 at 1020 after instructing Garth to remove his dog from the bed of the pick up and for the occupants to get out of the car.

At that point, LE had the following facts on which LE based his suspicion of criminal activity prior to the K9 sniff: the truck was an unregistered vehicle pulling an unregistered trailer which had an unregistered vehicle on the back; the truck “was a third-party vehicle, which due to training and experience was a possible indicator of criminal activity;” the plastic tote on top of the BMW was “very suspicious to [LE] to begin with;” the unusual nature of the address and Garth’s subsequent failure to confirm the address; LE eventually determined via Google search that the address provided by Garth as to their destination was a false address; Garth’s nervousness when asked to provide the VIN for the BMW; Garth had told LE he did not own the BMW or have a key to it, which LE found to be false after looking up the VIN number; LE had felt that the tote had an object inside of it; Garth told LE he did not know to whom he was delivering the car or who paid him to do so, but then within ten seconds provided a name and phone number; and Garth’s other inconsistent statements. While LE testified that he was suspicious a crime had been committed, he also stated that he did not know what crime had been committed, only that he “just knew it was criminal activity.” LE also described for the court his training and experience as well as that he was certified with his K9 and that the K9 had been with another handler for 5 years previously.

LE started deployment of K9 at 1023. LE noted alert behavior at the rear of the trailer. LE defined “alert” as “behavior that not everybody would note, but me as a handler, knowing his behaviors, would know when he is in the odor.” K9 continued around the trailer and the truck, then “went in between the trailer and the truck, the tongue hitch.” At 1025, K9 stopped at the pickup truck bumper, and LE said, “Good boy, where is it?” Then, K9 “put his front paws up on the bumper of the pickup truck and gave a positive indication” of “[i]llegal substances.” A “positive indication would be a behavior noted in the dog that somebody outside of the handler would recognize as him finding the odor.” LE described this behavior as a being “frozen in stature, staring at a certain location where the odor is coming from.” At this point, LE said, “Good boy, good boy,” tossed K9 a toy, and returned K9 to the patrol vehicle.

At 1033, the sergeant arrived and LE briefed him and included the areas in which K9 alerted but LE was unable to get K9 up on the trailer to get a good sniff of the car. LE asked whether he could search the BMW from the alert on the truck, and wondered if Sergeant wanted to deploy his canine, “Axel,” out of an abundance of caution, not knowing the legalities of the situation. At 1036, Sergeant agreed to run Axel for an additional sniff around the trailer and car. Axel jumped up on the trailer and gave a positive indication. Sergeant and Axel were properly certified.

At 10:38 a.m., LE opened the trunk of the BMW, saw what was inside, and said, “Let’s hook him.” The trunk contained marijuana. The plastic tote was also opened, and contained marijuana. The officers moved the truck to their office; they later removed the fuel tank and found a built-in compartment which also contained marijuana.

Accordingly, the court indicated that the question here was not simply whether LE had reasonable suspicion by the end of the stop, but whether he had sufficient reasonable suspicion along the way to justify prolonging detainment further. Here, LE’s traffic stop and subsequent detainment spans 54 minutes, from 0944 to 1038. The stop can be split up into three different segments: (1) LE’s traffic stop, (2) subsequent investigation, and (3) the dog sniffs.

First, occupants argue that LE failed to “diligently pursue issuing a citation” by “questioning the travelers about where they were going – including the specific address – and why.” The Tenth Circuit has held that an officer may “inquire about the driver’s travel plans” and “ask about matters unrelated to the stop” if it does not extend the detention beyond the time reasonably required to effectuate its purpose. These questions did not extend the detention beyond the time reasonably required to effectuate the purpose of the initial traffic stop; they were safely within the time justified by the initial violation.

The court finds that the totality of these facts are sufficient to support reasonable suspicion of criminal activity. Additionally, by 1011, LE had run a search on the truck VIN number, which revealed that the truck was not in the process of being registered in Oregon or California, contrary to what Garth had previously told him. LE “found it odd that a person would allow a friend to drive an unregistered vehicle from California to Utah,” and that this type of “third-party vehicle” was a “possible indicator of criminal activity.” This lent further support for an officer in LE’s position to believe there was criminal activity and justified prolonging detention beyond the point at which he handed Ms. Wilmoth the citation (1011) to determine whether there was in fact a stolen vehicle and/or contraband.

Occupants also argued that LE unreasonably extended the detention to wait for Sergeant. However, by 1014 when LE decided to request backup, he had come across additional facts supporting his reasonable suspicion of criminal activity, including: Garth told LE the BMW did not belong to him and that he did not have keys to the tote or the car, which LE found suspicious because the car was being delivered to someone in Salt Lake; Garth displayed “nervous” behavior, failing three times to read LE the VIN on the BMW; the VIN revealed that the BMW title was transferred to Garth in 2015, which was contrary to Garth’s statement that he did not own the car and did not have keys; LE felt an object inside the tote, which he found suspicious that the car being sold for parts had a tote that still contained belongings. These facts, in addition to all other facts available to LE, justified his continued detention and investigation, including his request for assistance from Sergeant.

By 1023, when LE began preparing to deploy his canine for a sniff around the vehicles, LE had already come across more facts which bolstered his reasonable suspicion: Garth had told LE that he did not know who was receiving the BMW, but then seconds later provided a name and phone number; when LE asked again about the delivery address, Garth said, “I don’t remember” and that “it’s in the car,” but Garth had previously retrieved the address from his phone, which was still in his hand; LE had also completed a simple Google search for the address that Garth had given him, but could not find any address by that name in Salt Lake City. LE believed Garth’s entire account was a “false story” because “nothing that he had told me from the beginning was matching up.” These facts, weighed together with the totality of the evidence available to LE at this time, amount to a reasonable suspicion that occupants possessed contraband, justifying extending the stop to conduct a dog sniff around the vehicles.

At 1033, Sergeant arrived and at 1035, LE briefed him, recounting that K9 “indicated on the truck,” “alerted on the back part of the trailer,” “but he’s having a hard time getting up on the trailer to get good sniff of the car.” LE asked whether he could search the BMW from the alert on the truck, and wondered if Sergeant wanted to deploy his canine, “Axel,” out of an abundance of caution. Sergeant agreed to run Axel for an additional sniff. At 1037, Sergeant ran Axel around the car, and at 1038 Axel “jumped up on the trailer and gave a positive indication.” At this point, LE opened the trunk of the BMW and found that it was filled with marijuana. In addition to the trunk, the plastic tote was opened and contained marijuana.

Overall, the duration of LE’s initial traffic stop from 0944 to 1011, his subsequent investigation from 1011 to 1023, and the dog sniffs from 1023 to 1038 were each individually justified by articulable facts leading to a reasonable suspicion of criminal activity. Nothing in the record shows that detention lasted longer than was necessary to effectuate the purpose of dispelling or confirming that suspicion.

The court then addressed whether the K9s were reliable. The court found that the K9 was fully certified at the time of the sniff and that he may have given one false indication in the field. However, the court said, a perfect detection rate is not required to establish dog-sniff reliability. Given K9’s certification, and the absence of record evidence proving his unreliability at the time of this search, K9’s sniff and subsequent indication were sufficiently reliable to establish a “fair probability that contraband or evidence of a crime” would be found in the BMW.

Occupants also contended that LE was “cuing” K9 in an unnecessarily suggestive manner by saying, “Good boy, where is it?” and “appear[ing] to present K9 with a toy.” It is true that the body-camera footage shows LE say the above-mentioned phrase and he appears to throw K9 the toy after K9 had placed his paws on the truck bumper and had given “a positive indication.” But outside occupants’ own interpretation of the footage, occupants present no basis for their interpretation, nor expert testimony on the subject, and LE’s testimony does not support occupants’ view.

The court then moved to the second K9. Both K9 and Sergeant were certified, and that K9 gave a positive indication for drugs by sitting/standing and freezing. Given the certifications of Axel and K9 and their handlers, and the lack of evidence undermining the positive indications provided by both K9s, as well as the absence of any evidence of unreliability, the K9 sniffs in this case were reliable.

Note: Case is unusual because the first handler called out a second handler because the first dog was physically unable to sniff the BMW on the trailer. Nothing wrong with that, but bear in mind if the second dog did not alert to the areas where the first K9 did, there is case law that says the second sniff would eliminate the probable cause provided by the first K9’s alert. 

People v. Sarente (California 2021) 2021 Cal. App. Unpub. LEXIS 4982
Traffic Stop; “Legal” Amount of Marijuana as Probable Cause

LE was patrolling an area known for drug activity, looking for people sitting in parked cars as LE found that to be suspicious activity. Sarente was sitting in a car in a hotel parking lot with a passenger and the engine off. LE parked perpendicular to Sarente without turning on his car’s lights and with enough space for Sarente’s car to leave the parking lot. As LE approached, Sarente appeared to be rolling a cannabis blunt and LE also saw cannabis in the middle console of the car.

Both occupants denied being on probation or parole and said they were adults (Sarante 20 and passenger 18). LE had them both exit and then searched the car for additional green leafy substances. In a closed handbag behind the driver’s seat, LE found a .380-caliber, high point handgun with the safety off and seven rounds in the magazine, but no rounds in the chamber. This gun turned out to be stolen.

This court and other courts have found Proposition 64 changed whether possession of cannabis by itself could be the basis for probable cause to search a car. (See People v.Johnson (2020) 50 Cal.App.5th 620; People v. McGee (2020) 53 Cal.App.5th 796.) In particular, section 11362.1, subdivision (c), “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.’ ” (People v. Hall (2020) 57 Cal.App.5th 946, 954.) But this applies only to activities “deemed lawful” by Proposition 64. (Johnson, at p. 629.) Thus, even after the enactment of Proposition 64, there is probable cause to search a vehicle if a law enforcement official sees a legal amount of cannabis in an illegal setting, such as in an open container while the car is being driven. (See McGee, at p. 804 [probable cause to search vehicle after an officer “witnessed the passenger in possession of an unsealed container of [cannabis] in violation of section 11362.3, subdivision (a)(4)”].)

With this law in mind, the appellate court found that LE had probable cause here to search defendant’s car. Under Proposition 64, legal possession of cannabis cannot provide probable cause to search. This includes possession of cannabis inside a car if it is not being driven. (See People v. Johnson, supra, 50 Cal.App.5th at p. 635.) But defendant admitted to LE he was 20 years old and it is still illegal for a 20year old to possess or consume cannabis. (§ 11357, subds. (a)(2), (b) [“Persons at least 18 years of age but less than 21 years of age are guilty of an infraction” for possessing “not more than 28.5 grams of cannabis”].) LE therefore had probable cause to search the car where other cannabis could be found because the totality of circumstances supported a belief there was contraband elsewhere in the car.

The possibility Sarente may have legally possessed medical cannabis does not eliminate the probable cause. As explained in Strasburg, an officer has probable cause to search a defendant’s car even if the defendant legally possessed cannabis for medical purposes. Although Strasburg’s central ruling is severely undermined by Proposition 64 — because it found cannabis alone could warrant probable cause in all circumstances — the court concluded its reasoning remains persuasive in circumstances not legalized by Proposition 64. Because Sarente was under the age of 21, Proposition 64 did not legalize his possession or consumption of cannabis at the time of the search.

Note: Sarente also challenged his probationary terms, but that part of the opinion is not reviewed here. This case is unpublished, and therefore not precedent, but it gives the government another argument that if there is an illegal possession, probable cause is demonstrated such that a vehicle can be searched under the automobile exception. (Interesting side note to the note: some states that have legalized marijuana for recreational use make a distinction between legalized and decriminalized. Those cases would argue that here, possession of a small amount of marijuana by an underage defendant is only an infraction punishable by a fine and therefore was decriminalized, and therefore, no probable cause could be established. This court did not address this issue, probably because of the specific language in Prop. 64 that said a “legalized” (not “decriminalized”) amount is not probable cause). Stay tuned for more on this trip down the rabbit hole with the appellate courts as they review more cases.

State v. Jones (Ohio 2021) 2021-Ohio-2621
Traffic Stop; Prolonged Detention

Traffic stop for lane violation. During the stop, about 18 minutes in, the K9 unit arrived. This court then defined the issue as whether 18 minutes is prolonged detention. However, the court rejected Jones’ claim that the traffic stop should have only taken 3 minutes and came to the conclusion that the record was clear that LE would not have completed the traffic warning before the K9 unit alerted to the presence of drugs, because it was not until after Jones had been removed from the vehicle and the sniff had begun that LE completed the traffic warning. The court went on to state that once the K9 alerted, LE had probable cause to search the vehicle.

Note: Nothing really new here, but the court did frame the argument awkwardly, seemingly mixing up “time” cases with “duration” cases. However, the analysis and conclusion was correct. The Rodriguez standard from the Supreme Court is “duration”; whether the traffic stop was prolonged beyond the mission of the traffic investigation (not how many minutes transpired).

Garrett v. Virginia (Virginia 2021) 2021 U.S. Dist. LEXIS 141630
Inmate Complaint; Excessive Use of Force

Inmate claimed that after a brief altercation involving a broom handle, he offered his hands behind his back so that he could be handcuffed. Instead, he claimed that two K9s were directed to attack him. He also claimed that he was punched and kicked while being bitten. He then claimed that LE picked inmate up off the floor with both K9s still attached and then slammed inmate against the wall.

After hospitalization, inmate was returned to the prison and his injuries were ignored during the 5 weeks he was in solitary.

The court found that inmate had properly pled a claim of supervisory liability because he alleged that supervisors were deliberately indifferent and that this type of conduct was widespread to the this type of conduct and that this indifference directly led to his injuries. Inmate also adequately claimed that there was a failure of policy that allowed this type of conduct.

Note: This is an opinion at a very early stage of the proceedings and inmate just has to pretty much say the right words to get past this stage. Hopefully, there will be video and other evidence of this situation which demonstrates the incredulity of the claim that LE picked up a full grown man with two K9s attached and then threw the whole snarl against a wall.

Johnson v. Fla. Dep’t of Corr. (Florida 2021) 2021 U.S. Dist. LEXIS 141108
Tracking/Trailing Evidence

Inmate filed a writ of Habeas Corpus, claiming he was being held unlawfully under federal law after his state conviction for burglary.

In the only ground the court addressed, inmate claimed that his counsel in the trial court failed to object to evidence of handler testifying about his K9’s ability to smell a “guilty” subject. However, the state court found that handler never testified that the K9 could detect guilt or about scientific principles. Instead, the court noted, handler described his observations of the K9’s behavior and gave his professional interpretation of that behavior as the K9’s handler. He explained that the K9’s aggressive behavior was an observed reaction to the tracking of a nervous or anxious individual, not one who was guilty. Furthermore, the state showed handler possessed specialized knowledge regarding canine tracking as a trained and experienced K9 handler. Finally, the record showed that handler was effectively cross examined by defense counsel, showing that defense counsel did an adequate and reasonable job at defending inmate.

Note: No witness may testify to the guilt or innocence of a suspect. That is the jury’s job. There is a discussion of the cross examination of the handler in this case and is worth reading to get a sense of how defenders will behave in court. Forewarned is forearmed.

New York v. Sanchez (New York 2021) 2021 N.Y. App. Div. LEXIS 4687
Traffic Stop; Odor of Marijuana as Probable Cause

During a 2017 traffic stop, LE detected the odor of marijuana. The passenger (driver’s son) admitted to possessing and smoking marijuana in the vehicle prior to the stop. A K9 also alerted to the vehicle.

The appellate court rejected Sanchez’s (the driver) contention that the search of his vehicle was unlawful. The traffic stop itself was not challenged by Sanchez. The K9 sniff and the resulting search were found to be lawful as “[i]t is well established that the odor of marjuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle”. LE testified that he received training at the State Police academy, which included “some training in drug recognition.” Although LE’s testimony as to his training and experience was minimal, his detection was confirmed by the son’s admission that “he had some marijuana on him and that he had been smoking in the vehicle” prior to the stop. The smell of marijuana and the son’s admission provided probable cause to search the vehicle and its contents.

Note: This stop and search case happened prior to legalization of marijuana in New York.

United States v. Lillich (8th Cir. 2021) 2021 U.S. App. LEXIS 22466
Consensual Encounter; Prolonged Detention

LE was aware of recent break-ins and saw a car at 0200 in a car wash bay. Concerned that the occupants might be planning a burglary of the car wash, LE approached the 2 people in the car wash bay who were drying a car. LE engaged them in conversation and asked for ID, which was given to LE by both. While the information was called in, the occupants continued to dry the car and access items in the car. Lillich (one of the people drying the car) finally asked if they were free to go and LE said no. IDs were returned after 7 minutes. At that point, LE Terry frisked the other occupant and found methamphetamine. He was arrested and since Lillich did not have a valid license, he was told he should call someone to come and get him. A K9 was called in for a sniff. Lillich was not allowed to leave prior to the K9 alerting to the vehicle. Contraband was found in the vehicle, along with Lillich’s phone, which had incriminating information.

The court held that the initial contact was a consensual encounter as LE asked (not ordered) to see ID and that Lillich voluntarily complied. Lillich continued in his activities while LE investigated the IDs. This indicated that the initial contact was consensual.

Lillich then complained that his car was unlawfully seized to await a K9 sniff. However, the appellate court held that Lillich had failed to demonstrate the requisite nexus between his detention and the discovery of the evidence. No evidence from Lillich’s person, after he asked to leave, was used to support the seizure or search of the car. For the less than one minute between when Lillich asked to leave and when the officers found drugs on other occupant, Lillich’s car was stationary because Lillich legally was unable to drive it and Steffens, the driver, was under arrest. The detention of Lillich’s person had nothing to do with the car remaining stationary for that one-minute period. Thereafter, the evidence relied upon to support the officers’ seizure of the car to await the drug dog came from Steffens: the drugs found in Steffens’s pocket and Steffens’s outstanding warrant for “dangerous drugs.” And Lillich told the officers during the initial encounter that he was barred from driving and that Steffens was driving the car. But the presence of drugs in Steffens’s-the driver’s-pocket provided reasonable suspicion to seize the car to await a drug dog sniff. No “other facts” were needed.

Note: Here, Lillich chose his driver badly and was stuck at the scene solely because he had no license (in other words, his own bad choices put him in the situation).  Interesting that the court set the “Rodriguez” moment on a 1 minute interval between Lillich asking to leave and LE found drugs on Steffans. They then found that Lillich failed to demonstrate a nexus (link) between this less than one minute interval and the discovery of the evidence in the car. The discovery of the evidence in the car was based on Steffans’ arrest for possession of dope. So, while the less than one minute interval between the request to leave and LE finding contraband on the driver may have been violative of Rodriguez, Lillich was not able to demonstrate a nexus between the alleged improper detention and the evidence discovered in the car. Interesting. 

Rodgers v. Hyatte (Indiana 2021) 2021 U.S. Dist. LEXIS 139625
Excessive Force; Heck Doctrine

An inmate complained that after he was told to get on the ground three times (he refused because he had been bitten by a K9 before), LE deployed his K9 which then bit inmate. Inmate was then charged with attempted assault of staff  which is a violation of the prison disciplinary code. Handler accused inmate of threatening to “beat” the K9 and then actually hitting the K9 during the bite. Inmate was found guilty of the violation and was punished with restrictive housing, loss of credits and demotion of class.

Inmate then sued handler for civil rights violations, claiming handler lied at the disciplinary hearing. This opinion encompassed the court’s review of inmate’s claim to determine if it even stated a claim.

The court found that inmate did not and cannot state a claim where he would prevail. He cannot seek damages based on allegations that he did not assault the K9, that the charges against him were “false”, or that his due process rights were violated in the disciplinary hearing, because such claims necessarily imply the invalidity of his disciplinary conviction per the Heck Doctrine. The court acknowledged that excessive force claims are not categorically barred by Heck. Here, however, inmate alleges that he was not acting aggressively during the incident with handler so as to give him cause to release the dog, and that he did not hit or threaten the K9-allegations which directly undermine his disciplinary conviction. (The Heck bar applies “if specific factual allegations in the complaint are necessarily inconsistent with the validity of the conviction”).

Note: The Heck Doctrine exists so that a criminal defendant cannot turn around, allege different facts than the previous court found to be true and then recover damages on these alternative facts. This doctrine is generally found to apply in criminal cases, but was extended here to prison disciplinary hearings. 

Devine v. Phoenix Police Dep’t (Arizona 2021) 2021 U.S. Dist. LEXIS 138158
Excessive Force

LE was in search of a residential burglary suspect on the loose and had a description of a black male, 5’8″, medium build and black shirt and pants. Devine was spotted coming out of the backyard of a residence in the area. Devine saw LE and ran from them. Several commands were given to stop, but Devine continued to run and jumped over a fence and continued through back yards. A perimeter was set up with air support and a K9 team being called in. (While the opinion does not say this, it is assumed for purposes of this review that Devine matched the description of the burglar). LE did not know if Devine was armed but knew that any number of non-traditional weapons could be found in the back yards Devine was running through. The K9 team arrived and issued two warnings (LE obtained permission from the homeowner to have access to the back yard). K9 alerted on a large bush. Handler took K9 to another location to have better access. LE then saw Devine under the bush and told him to come out. LE had no idea at that point whether Devine had a weapon. Devine got up, jumped the fence and kept running. At this point, the K9 team had rejoined LE and gave another warning just as it appeared Devine was going to jump another fence. This warning was ignored as well, and K9 was deployed as Devine was beginning to jump over the fence. K9 bit Devine, but was unable to maintain the bite and Devine made it over the wall. K9 not released at that point because LE not sure whether other dogs were present behind the fence. The helicopter then picked Devine up and after more chasing, and some struggle, Devine was arrested.

All officers were sued by Devine including the handler. Devine’s version of the encounter was directly impeached by body cam video, such that the appellate court accepted LE’s version of the facts and rejected Devine’s version. The court analyzed the Graham v. Connor factors and determined that all factors favored LE and therefore, Devine’s civil case was dismissed. Residential burglary was found to be a serious crime which justified use of some force to restrain Devine (factor 1); it was reasonable for LE to believe that Devine was armed and that he posed a threat to LE and the public. Warnings were given in a manner in which Devine should have heard them and the bite was bitten only once, with the handler deciding not to redeploy (factor 2); and Devine was clearly actively resisting/fleeing (factor 3).

Note: Devine claimed that other officers used other means of force; those claims are not reviewed here. No new law made here, but a good case for the use of body cameras. Since the body cam footage completely contradicted Devine’s version of events, this case was dismissed before it even began. Without that footage, it would have probably survived this motion for summary judgment and LE would be defending the case on its merits in a much more costly credibility contest.

Johnson v. K 9 (Virginia 2021) 2021 U.S. Dist. LEXIS 133966
Excessive Force; Eight Amendment Violation; Liability of Bystanders; Liability of Supervisors

Johnson was an inmate at Red Onion State prison (ROSP) and claimed, among other things, that the correctional officers at Red Onion violated his Eighth Amendment rights by deploying a K9 to attack him after he ceased fighting with another inmate and was lying prone on the floor with his arms extended. Johnson asserts that the dog mauled him, lacerating his arm with its teeth. The resulting wound required 21 stitches to close and, according to Johnson, caused permanent nerve damage.

In addition to suing the correctional officers who were present during the attack, Johnson alleges that the other named Virginia Department of Corrections (VDOC) officials, including the officers’ supervisors and individuals within VDOC’s chain of command who oversee the K9 program, violated the Eighth Amendment by failing to train, supervise, and discipline the correctional officers involved and by maintaining inadequate canine policies, training programs, and disciplinary procedures. Johnson also maintains that these supervisors were liable under state law for these shortcomings.

The facts alleged were that Johnson engaged in a fistfight with another inmate, resulting in prison security deploying gas canisters and K9 units. Johnson alleges that he ceased fighting with the other inmate after the gas canisters were deployed but before the K9 units arrived. Knowing that the incoming K9 handlers would order him to lie on the ground and in anticipation of their orders, Johnson did so before they arrived. He alleges that he was prostrate on the ground with both arms extended when handler released his K9 and ordered it to attack Johnson. The dog mauled Johnson as he was lying on the ground, dragging him by the arm. Johnson’s complaint states that handler stood by while his dog mauled Johnson, even encouraging it as it dragged Johnson, tearing open his arm.

Johnson alleged that three other correctional officers witnessed the attack but did not intervene. Johnson alleged that these officers should have known the mauling was excessive and should have taken efforts to stop it. He also alleges that the supervisors at ROSP and VDOC were aware of a pattern of K9 officers using dogs to assault inmates, and failed to properly discipline, train, or supervise those K9 officers or promulgate policies that would protect inmates from unjustified dog attacks. Johnson not only sought money damages, but also an injunction to stop VDOC polices that permit, condone and/or ratify K9 attacks on prisoners.

The appellate court was unable to conclude, based on Johnson’s pleadings, that any injury will “likely” remain in the past. Johnson claimed that the illegal use of dogs is “pervasive,” and that canine officers routinely use dogs on prisoners who “pose[] no threat.” Thus, according to Johnson’s allegations, he spends every day encountering individuals who engage in a pervasive practice of setting dogs on non-threatening individuals. If, with the benefit of discovery, the situation becomes clearer and the court is able to conclude that Johnson’s hypothetical future injuries are “merely conjectural,” the parties are invited to revisit their standing arguments. But taking Johnson’s allegations at face value, the court could not conclude that he is unlikely to experience the future harm identified in his complaint.

Note: This is a preliminary motion brought by LE to try to knock out the case prior to investing resources in defending it. It has a good discussion on agency liability and bystander liability as well as policy issues. Supervisors and policy makers should take a look.

United States v. Henderson (Georgia 2021) 2021 U.S. Dist. LEXIS 134131
Traffic Stop; Prolonged Detention

Traffic stop for speeding. Plate called in and another LE started on route to the scene as backup. Driver directed to exit the car and she accidentally turned on the wipers when reaching to undo her seatbelt. She got out and handed her license to LE.

LE asked questions about driver’s travel and speed. LE asked who owned the car, and driver told him it was a rental car in her name and the rental agreement was in the car’s glove box. LE then told driver he was going to grab the rental agreement paperwork “real quick,” but continued to question driver about her travels, any contraband or weapons in the car, whether driver was sober, her employment status, ID of passengers and whether they were “straight.” LE also directed driver to open her eyes and look at him and to open her mouth and stick out her tongue to assess her sobriety; he testified he did not smell any alcohol on driver’s breath or notice any indication of recent marijuana consumption.

After this period of questioning, which lasted about two minutes and forty seconds, LE again told driver he was going to grab the rental agreement from the car. He asked driver to sit on the hood of his patrol vehicle next to back up LE while he did so. LE then approached the passenger’s side of the car to retrieve the rental agreement; the passenger seated there handed the paperwork to LE. LE testified that while he was retrieving the paperwork, he immediately recognized the smell of marijuana coming from inside the car. Driver did not dispute this fact. A K9 team was called in and alerted.

Driver claimed that LE’s questioning amounted to an illegal prolongation of the stop per Rodriguez.

The appellate court held that the questions were a Rodriguez violation (unclear when that Rodriguez violation occurred specifically), but that the evidence obtained by LE was admissible under the inevitable discovery doctrine. Therefore, the court held, in this case, whether LE violated Rodriguez or not, LE was going to approach the car and obtain the rental agreement and therefore inevitably smell marijuana.

Although evidence obtained from an illegal search is ordinarily inadmissible under the exclusionary rule, this rule “has been tempered with exceptions that apply where the deterrence rationale has little basis.” Under one of these exceptions—the inevitable discovery exception—”if the prosecution can establish by a preponderance of the evidence that the information would have ultimately been recovered by lawful means, the evidence will be admissible.”

The active pursuit requirement of the inevitable discovery exception exists to address those exact situations: where a police officer is actively pursuing a violation, commits a constitutional violation, and then obtains evidence. (“[I]f evidence is obtained by illegal conduct, the illegality can be cured only if the police possessed and were pursuing a lawful means of discovery at the time the illegality occurred.”). “‘Subtract the [illegal search] from the factual picture in this case’ and ‘nothing of substance’ would have changed.” Such are the cases where the inevitable discovery exception applies.

Note: A straightforward statement of the inevitable discovery doctrine. Also, at the time of this search, marijuana was not legal in Georgia.

State v. Maffey (Ohio 2021) 2021-Ohio-2460
Traffic Stop; Prolonged Detention; Inevitable Discovery Doctrine

Maffey was a passenger in a vehicle that was stopped (failed to signal a turn and loud exhaust) in a “high drug area” by LE engaged in drug interdiction work. Maffey was not wearing a seat belt so LE asked for his ID. Maffey gave a false name and a date of birth but said he could not remember his SSN. LE also obtained ID information from the driver. While this information was being processed by LE’s communication center, LE got out his K9 and performed a free air sniff of the vehicle. K9 showed alert behaviors and then a final indication. K9 was secured in the patrol vehicle and the communication center told LE that the information given by Maffey was not true. Maffey was directed out of the car and handcuffed. He was Terry frisked and LE found a wallet which he searched for ID and contraband. When LE pulled the ID from the wallet, Maffey admitted he lied because he had a warrant out for his arrest. Vehicle searched after Maffey also admitted to possessing contraband; additional contraband found.

Maffey filed a motion to suppress. The court first addressed the search of Maffey’s wallet, holding that the search of the wallet exceeded the legal scope of a Terry frisk because it cannot be used to search for evidence of a crime, but for the protection of LE. The court then addressed the inevitable discovery doctrine in this case. First, the court held that LE had probable cause to search the vehicle based on the probable cause supplied by K9’s alert and therefore legally found the contraband in the vehicle. In addition, the court held that stopping to secure Maffey was for LE’s protection so this temporary pause in investigating the K9’s alert did not render the initial investigation abandoned.

Therefore, the court concluded that LE’s search of the car was not due to Maffey’s statements after the search of the wallet (which they held to be improper). Instead, the line of investigation relating to the vehicle and K9’s alert was separate and distinct from LE’s subsequent search of Maffey and LE would have inevitably lawfully discovered the drugs in his investigation of K9’s alert regardless of Maffey’s statements or search of the wallet.

Note: This court went into LE’s subjective intent to support their conclusion which is a slippery slope into an area of law that could be a problem (most courts have held that an officer’s subjective intent is irrelevant). This is a good reminder to make sure you as a witness do not volunteer any information about which you are not asked. In other words, if not asked about what you were thinking, don’t volunteer it.

Fuentes v. State (Oklahoma 2021) 2021 OK CR 18
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

Fuentes was stopped for speeding during a 6 week long investigation in which LE had put a tracking device on his car via search warrant and believed that he was involved in drug trafficking based on information from a reliable CI. This stop was directed by the investigating officer to a patrol officer. Fuentes claimed that the traffic stop was illegally prolonged into a drug investigation.

The court held that the collective knowledge doctrine (also known as the fellow officer rule) applied in this case. At the inception of the stop, patrol LE explained that the stop was for traffic violations. Patrol asked Fuentes for his driver’s license and patrol kept it while he ran computer checks and wrote the citation. During this time, patrol also called for backup and requested the assistance of a K9 unit. After patrol finished the computer check and writing the citation, he detained Fuentes longer, prohibiting him from leaving while a K9 officer walked the K9 around Fuentes’ car. This was done in spite of Fuentes’ request that he be given the ticket and allowed to leave immediately without waiting while the K9 screened his vehicle. It was Fuentes’ position that patrol did not have personal knowledge giving rise to a reasonable suspicion which would allow him to detain Fuentes past the time necessary to effectuate the purpose of the traffic stop. He complains that patrol could not lawfully rely upon information from investigating LE to justify prolonging the stop, but that patrol could only extend the stop in reliance upon reasonable suspicion derived from the stop itself.

The court disagreed and held that the collective knowledge doctrine applied. Generally stated, the doctrine allows an officer to stop, arrest, or search a suspect in limited circumstances, even if the officer does not have firsthand knowledge of all of the facts that amount to reasonable suspicion or probable cause to justify the action. This principle derives from the recognition that law enforcement officers must be permitted to work collectively in the performance of their duties and act on directions and information given by one officer to another.

The court continued, stating that the collective knowledge doctrine has both vertical and horizontal application. The vertical application, implicated here, occurs “when an officer having probable cause or reasonable suspicion instructs another officer to act, even without communicating all of the information necessary to justify the action.” The officer taking action does not need to personally be aware of all the facts justifying the detention because “officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” Fuentes’ claim that extending the duration of a traffic stop is permissible based only upon factors observed personally by the officer during the traffic stop is simply not supported by the law. Therefore, the court held that since the investigating officer had reasonable suspicion to believe that Fuentes was trafficking drugs based upon information from two known reliable confidential informants and his own investigation, under the collective knowledge doctrine, investigating officers’ reasonable suspicion was vertically imputed to patrol since investigator directed patrol to make the traffic stop. Thus, based upon investigator’s reasonable suspicion that Fuentes was engaged in illegal activity, patrol was justified in extending the lawful traffic stop for a reasonable length of time while a K9 was dispatched and walked around the vehicle.

Note: Fuentes only challenged the expansion of the traffic investigation to permit the K9 sniff. No other issues were raised so the reason for the traffic stop, the reliablity foundation of the K9 team and other issues were not analyzed.

United States v. Munoz (Kentucky 2021) 2021 U.S. Dist. LEXIS 132614
Traffic Stop; Prolonged Detention

Troopers were instructed to be on the lookout for a Chevy Equinox travelling on Interstate 75. Troopers saw the vehicle and ran the license. It was discovered the the vehicle was registered to Munoz. The database confirmed that Munoz did not have a valid driver’s license. One of the troopers was K9 handler and also observed the vehicle waver back and forth over the center line. Based upon these observations and the concern that Munoz was driving without a license, handler and another officer initiated a traffic stop (two patrol vehicles were involved).

Handler approached the vehicle and determined that Munoz was not driving but in the front passenger seat and Luis Angel Santos-Perez (“Santos-Perez”), was the driver. Handler noticed an open beer can in the vehicle’s center console and the odor of alcohol in the vehicle. Handler asked Munoz and Santos-Perez various questions about their travels that day. Based upon Munoz’s answers, handler believed Munoz to be answering evasively and dishonestly. They claimed to have been looking at a car in Cincinnati but struggled to answer certain questions or provide specifics. handler was also suspicious because it was around 9:00 p.m., which he thought was an odd time to be viewing a vehicle for purchase.

Handler eventually asked both men to exit the vehicle and directed partner to conduct a field sobriety test on Santos-Perez. Handler retrieved his K9 from his cruiser and began to walk the dog around Munoz’s vehicle. The dash camera showed the K9 jumping up onto the car near the rear windows. Handler testified this certified K9 provides an “aggressive alert” that includes jumping in this manner when he detects narcotics. Handler determined the K9 alert provided probable cause to conduct a search of the vehicle. Handler also obtained Munoz’s consent for the search.

The evidence (dash cam video) showed that at the very same instant that the Troopers confirmed Munoz was not illegally operating the vehicle and testing the window tint, LE saw the open container between Munoz and Santos-Perez. From there, LE needed to write the tickets for the tint violation, the open container, and conduct a field sobriety test for Santos-Perez. Partner, without delay, began conducting the field sobriety test. While that was going on, handler began the K9 sniff, exactly four minutes after Munoz’s vehicle came to a stop on the side of the road. The K9 sniff concluded one minute and thirty-eight seconds later. And while there was some ambiguity whether the K9 sniff was fully completed prior to the conclusion of the field sobriety test, there is no dispute that LE had yet to write the tickets for the aforementioned violations. Therefore, the court held there was no prolonged detention.

Note: The court went on to state that even if the K9 sniff was an extension of the stop, the Sixth Circuit has routinely approved brief extensions of traffic stops—far longer than sixty-eight seconds—for the purpose of conducting a K9 sniff. The case that controls this concept is Rodriguez in which LE must either conduct the K9 sniff during the traffic stop with no delay or develop additional probable cause. Rodriguez overruled “time” cases, holding that the passage of time is the standard. However, the courts will still look at the delay to see if it is unreasonable. A wait of several hours K9 team to respond, even with reasonable suspicion that contraband is in the vehicle, could be held to be impermissible delay depending on the circumstances.

United States v. Vasquez (9th Cir. 2021) 2021 U.S. App. LEXIS 20963
Traffic Stop; Odor of Marijuana as Probable Cause

Contact (court classifies it as a traffic stop even though the vehicle was already stopped) of a stationary vehicle which was part way into the lane of traffic in violation of the law. When LE approached, they smelled the odor of burnt marijuana. The court held that LE had probable cause to search the van based on “the totality of the circumstances known to LE at the time of the search.” Here, the fact that LE smelled burnt marijuana, combined with other factors, supported probable cause for the vehicle search.

Vasquez complained that LE was lying about smelling burnt marijuana. The court held that finding LE was truthful about smelling burnt marijuana was based on an assessment of the witnesses’ credibility — to which appellate court gives deference and corroborating evidence. LE consistently reported smelling a strong odor of burnt marijuana emanating from the van. Evidence found during the search of the van corroborates the officers’ testimony. This included 20-30 vape pens, a text regarding marijuana vape cartridges, a vape charger, and $6,680 in cash that suggested possible drug transactions. The female passengers also reported that another passenger had been vaping earlier that day. Defense opposing testimony was rejected as “false” due to various inconsistencies.

The appellate court then turned to Vasquez’ second argument, that the smell of marijuana cannot provide probable cause because marijuana for personal use had been legalized. The court held that it is true that the smell of marijuana alone no longer provides a basis for probable cause. But, when combined with other factors, the smell of marijuana may still support probable cause that a vehicle contains evidence of marijuana activity that remains unlawful under California law, such as driving under the influence of marijuana.

Here, the court held, several factors supported probable cause. LE smelled burnt marijuana coming from the van; the van was stopped in front of a building known to be controlled by a gang, in an area known for drug use and drug trafficking; the van was only partially pulled into a driveway, with its headlights and taillights on, and all four occupants still inside; and the people surrounding the van dispersed when the officers approached. From these facts, it was reasonable for LE to infer that a violation of California’s marijuana laws might have taken place, and that evidence of such a violation would be found in the van. The van’s position suggested that it had recently been in transit, and the smell of burnt — rather than fresh — marijuana supported the inference that Vasquez may have been driving under the influence of marijuana which LE was entitled to investigate.

Note: While this case confirms Johnson, it also makes clear that even if there is only evidence that the marijuana possessed is a legal amount, you may still use it as part of the probable cause for arrest or search. Note to the note: The list of AKAs and monikers for Vasquez in the caption of the case is amusing, but also important to the prosecution. By officially establishing monikers and AKAs, it makes it easier for future prosecutors to quickly identify previous defendants and their connection to their criminal enterprise. It can be very helpful in those (now rare) cases in which the prosecution can still allege gang enhancements. It’s also a public document which gives the public a more accurate view of defendant.

State v. Ponce (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 223
Traffic Stop; Prolonged Detention

Traffic stop by two officers of Ponce for making turns without the benefit of turn signals. LE contacted Ponce and began gathering information necessary to complete the traffic stop mission. LE realized the license plates on the vehicle were expired and that Ponce had been previously warned about the plates. LE began writing up the citation but there was an inconsistency in Ponce’s address. Additional discussions were had. LE returned to terminal to continue the ticket and asked other on-site LE to tell Ponce what was happening and asked LE to talk to the passenger. While this was all happening, a K9 alerted on the vehicle. Vehicle searched and heroin found.

Ponce filed a motion to suppress, arguing in part that LE’s conversations with other officers on the scene unlawfully extended the stop before the K9 alerted. Ponce argued that LE unlawfully extended the stop when he (1) suggested to on-site LE to have Ponce exit his vehicle; (2) answered another LE’s questions; and (3) asked yet another LE to speak with the passenger. Ponce argued that these exchanges were deviations from the purpose of the stop and unlawfully extended Ponce’s detention. However, the appellate court accepted the trial court’s determination that these conversations did not constitute abandonment of the original purpose of the stop and did not unlawfully extend Ponce’s detention.

Ponce also acknowledged Idaho Supreme Court authority holding that a traffic stop is not unlawfully extended by conduct that does not add time to the stop. As the conversations did not add time to the stop, the appellate court upheld the trial court’s denial of the motion to suppress.

Note: Nothing really new here. Some facts were left out of the appellate decision but did not affect the decision which was basically the trial court did not err in denying the motion to suppress.

People v. Burroughs (Illinois 2021) 2021 IL App (4th) 190554-U (Unpub.)
Traffic Stop; Prolonged Detention

This appellate case was brought by Burroughs, complaining that his trial attorney failed to represent him properly by not bringing a motion to suppress.

Burroughs was stopped by LE for speeding. Burroughs was not able to produce proof of insurance even though he was given time to look for it. While LE was talking to Burroughs, a K9 team arrived and alerted to the vehicle. Burroughs was asked to exit the vehicle and was searched. LE found a bong and a meth pipe which later tested positive for meth.

Burroughs did not challenge the reason for the stop in his appeal. Therefore, the only issue that the appellate court considered was whether the stop was unlawfully prolonged.

The court held that the evidence presented showed LE initiated the traffic stop and made contact with Burroughs approximately 2 1/2 minutes into the video. LE explained he stopped defendant for speeding and requested the usual information from defendant and identification from the passenger. Burroughs could not find proof of insurance, and LE remained at the vehicle while defendant searched for his insurance card. Approximately 6 1/2 minutes after LE initiated the stop, LE confirmed the vehicle’s registration information with dispatch from his squad car. LE remained in his squad car for approximately four additional minutes while Burroughs searched for his insurance information. LE returned to Burroughs’ vehicle, and Burroughs was still unable to produce proof of insurance. Approximately 14 minutes into the video (and approximately 11 1/2 minutes after initiating the stop), LE returned to his squad car. Almost 21 minutes after initiating the stop, LE returned to defendant’s vehicle, and the K9 team can be seen approaching. Thereafter, LE directed Burroughs to step out of his vehicle while the K9 team conducted the free-air sniff.

The appellate court held that under these circumstances, Burroughs has demonstrated the motion to suppress had arguable merit and defense counsel’s failure to file such a motion was unreasonable. The video shows LE had all the information necessary to conclude the normal inquiries following a valid traffic stop within 10 minutes of initiating the stop. LE had already gotten Burroughs’ license and registration, confirmed the vehicle’s registration, and gave Burroughs additional time to search for his proof of insurance. By the time LE returned to his squad car approximately 11 minutes after initiating the stop, the only business left to attend to was writing traffic citations for speeding and not having proof of insurance. The “business portion” of this stop should have reasonably concluded within 15 minutes. Even if LE reasonably allowed Burroughs time to search for his insurance information, it did not justify the 10 additional minutes LE sat in his squad car after twice confirming Burroughs could not show proof of insurance before the K9 unit arrived at the scene.

However, because this was an appellate argument on appeal of trial counsel’s failure, this appeal was not granted because even though the stop was unlawfully prolonged, Burroughs also had to show that he suffered prejudice such that the outcome of the case would have been different. Since this was not brought up in the trial court, the appellate court did not have the record to make the finding of prejudice. Therefore, a collateral proceeding, such as a writ of habeas corpus, was the proper avenue to pursue this argument.

Note: There was no real evidence of what was going on in those 10 minutes and that was why the appellate court denied the appeal in this appellate proceeding. In a writ, the government will also have the ability to produce evidence and the appellate court recognized that there may be evidence from the government that justified the stop.

Burley-Carter v. State (Maryland 2021) 2021 Md. App. LEXIS 595
Traffic Stop; Prolonged Detention; Fruit of the Poisonous Tree

Traffic stop for tinted windows (second stop in two days for the same reason). The first stop resulted in a warning after Carter told officer he was in the process of correcting the tint. The second stop was after observing the vehicle at an unrelated search warrant site (drug related). The vehicle was also too far from the curb. Both stops were by the same officer. This officer testified that once warned, the person has 10 days to make the correction. LE requested license and registration again, but determined that Carter’s movements were “suspicious” so he ordered driver out of the car. Another officer on scene called for a K9 team. Further discussions with dispatch indicated some confusion about Carter’s first name which could appear feminine (Carter is male). However, dispatch did finally indicate that Mr. Carter was valid. 16 minutes from the time of the stop, the K9 team arrived and alerted. LE testified that the sniff took place while LE was communicating with dispatch. A gun was found and a search warrant based on the traffic stop evidence was issued for Carter’s house.

Carter filed a motion to suppress, arguing that the prolongation of the traffic stop to await a K9 team was unlawful and therefore the search warrant was fruit of the poisonous tree.

The court found that LE “stopped” appellant’s vehicle at 5:55 a.m. for excessively tinted windows (a second time in two days) and the parking violation. The process of approaching the vehicle, requesting the license and registration, and retrieving the license and registration from appellant would have been brief; there is not a record finding of the duration, but we know from subsequent events that it took less than three minutes. LE then radioed for K-9 support at 5:58 a.m. At 6:01, LE contacted dispatch and said only, “I got a vehicle stop, 100 South Calverton.” He did not ask dispatch for anything, and he sat silently waiting for the dispatcher to respond to him until 6:06 a.m. At 6:06, the officer and the dispatcher connected, and LE asked the dispatcher to run the tags on appellant’s vehicle. The dispatcher said that the registration was to “a Maryan Carter.” LE testified that he “didn’t really recognize that” and that it sounded like the dispatcher was pronouncing a female name; LE then told the dispatcher that he believed somebody else was driving, and asked the dispatcher to run more information on the license number. The dispatcher ran it and responded, “Mr. Carter is valid.” In the subsequent four or five minutes, according to LE, he worked on a citizen contact form, the Baltimore Police one-page form that is a record of a stop not resulting in an arrest, until the K-9 officer arrived at 6:11. The testimony of the K-9 handler contradicted LE’s with respect to LE’s activities at the time of the K-9 arrival. The K-9 “hit” occurred at 6:13 a.m.

Carter thus waited eighteen minutes while LE sought a new basis to detain him or search him. Although a few of the eighteen minutes were reasonably spent, the court was left with an unexplained gap in police activity between 5:58 and 6:01, a failure to do anything between 6:01 and 6:06 after reaching out to dispatch at 6:01 and waiting to hear back, and slow work on the citizen contact form between 6:06 and 6:11. In aggregate, these delays inexorably yield the conclusion that LE was slow-walking the stop to enable the K9 to arrive and to sniff the automobile. The amount of time reasonably required to do the necessary checks and issue the citation, particularly given that LE had gone through the same procedure the day before, was well less than the eighteen minutes expended.

In addition, the court held the aggregate delay here exceeded the seven to eight minutes at issue in Rodriguez, under similar factual circumstances of LE waiting for a K-9 scan that they were seeking based on a hunch. A hunch does not amount to reasonable suspicion. Nor does a vague sense that a driver moved “suspiciously” while retrieving a license and registration. The case at bar lacked any independent reasonable suspicion that might have justified the additional detention.

The court concluded that law enforcement LE prolonged the detention to allow the K-9 unit to arrive on the scene and sniff the automobile. There was no lawful justification for that delay; appellant was subject to a second detention without reasonable suspicion or probable cause. Therefore, since the search warrant probable cause was based on the evidence found in the car, the court granted the motion as the evidence seized from the house was fruit of the poisonous tree.

Note: The appellate court emphasized that what was critical here is the totality of the circumstances. LE had stopped Carter for the identical violation the day before. He knew who Carter was; he was aware that the vehicle was registered to Carter and that he had never seen anyone else driving the vehicle. LE had issued a written form to Carter as to the window tint, and Carter had at least ten days to correct the violation. That leaves the more than twelve inches from the curb violation. LE merely had to issue a citation or warning to appellant. Not only was the stop here pretextual, albeit permissible, but the prolonged detention was a pretext to await the K9 sniff, a detention or prolongation of the initial stop which was not permissible. It’s hard to know when LE realized the driver was the same person who he warned about the window tint 2 days previously, or how confused LE was when dispatch told him “MaryAnn” Carter was the registered owner (Carter’s first name is written with a diacritical mark as Ma’Ryan, which, when pronounced with the diacritical mark, sounds masculine). However, there is that first 5 minute delay without any explanation. Make sure you can describe your activity for the entire duration of the traffic stop to avoid the court making guesses (to your detriment) as to what actually happened.

United States v. Edwards (Georgia 2021) 2021 U.S. Dist. LEXIS 130794
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

Edwards had been the target of a large investigation which had identified a house as a stash house. Investigation showed that co-defendants sent Edwards to the house for a large scale buy and cash to settle a previous transaction. LE saw the vehicle approach the stash house and stay there for about 20 minutes. After it left the stash house, LE stopped the vehicle for an obstructed plate. A K9 team was on scene at the stop. Edwards was the passenger. LE asked the driver to exit and conversed with her about the vehicle, her identity and what she was doing. She was unaware of the year of her car so LE then approached Edwards still in the passenger seat to obtain the registration. Edwards had a divergent story from the driver’s. After the driver was served with the citation, LE asked for consent to search and driver refused. LE then asked Edwards out of the vehicle and Terry frisked him. While this frisk was happening, the K9 alerted to the vehicle. Large amount of contraband were found, verifying the information overhead on the intercepts.

Edwards complained LE unconstitutionally prolonged the stop by asking questions unrelated to the traffic violation at issue and dilatorily completing required paperwork. The trial court did not reach that argument. Instead, it held that, “regardless of any traffic violations,” the information within the collective knowledge of law enforcement officers in communication with one another provided “probable cause to stop and search the car in which Defendant was traveling.” The appellate court agreed and held that when LE initiated the traffic stop, information collectively known by law enforcement created an objectively reasonable suspicion that the vehicle contained methamphetamine. That justified LE’s conduct without regard to the justification for the stop he provided to the driver.

Edwards claims that the information from the investigating officers was not adequately communicated to the stopping officers. In short, Edwards claimed that since the stopping LE was not informed of the entire investigation, he could not prolong the detention of the vehicle and its occupants. The appellate court held that the evidence did indeed provide adequate information for the traffic stop by LE. Among other things, the investigators informed LE that they suspected drugs present in the vehicle and described the vehicle to them. This was enough to rise to the “minimum level” of information exchange required to trigger the collective knowledge rule. Because information within the collective knowledge of LE provided objective and particularized reasons to suspect the vehicle’s occupants had just acquired illegal drugs and that the vehicle contained those drugs, the traffic stop was constitutional.

In addition, however, LE waited until a traffic violation was committed to stop the vehicle “to make sure I have the bas[e]s covered” and to “have my own probable cause.” The court held that even though LE had a subjective motivation in stopping the vehicle (drug investigation), “an officer’s motive in making [a] traffic stop does not invalidate what is otherwise ‘objectively justifiable behavior under the Fourth Amendment.'” Thus, the stop had two objectively reasonable missions. In these circumstances, the traffic stop was “lawful at its inception and otherwise executed in a reasonable manner.” The K-9 sniff of the exterior of Defendant’s vehicle therefore does not “implicat[e] Fourth Amendment concerns.”

When the K-9 indicated the presence of drugs, LE acquired probable cause to search the vehicle under the well-established “automobile exception” to the warrant requirement.

Note: Nothing really new here, but good police work in the investigation to create as many avenues of admissibility as possible.

United States v. Spikes (Colorado 2021) 2021 U.S. Dist. LEXIS 128942
Traffic Stop; Prolonged Detention; Reliability Foundation

Defendants (Spikes and Montoya) were stopped by LE for a window tint investigation. The stopping officer did not have a tint meter and so called for a Sergeant to respond with a tint meter. In addition, LE had additional duties to perform regarding the violation before and after the arrival of a tint meter. During this time, a K9 team responded and alerted to the vehicle (apparently — this wasn’t actually in the appellate opinion).  Defendants were only released from the scene after the meter was utilized to determine the tint was too dark and a citation was issued and served. Since the traffic stop investigation and mission did not stop, there was no prolonged detention.

Defendants also complained that the K9 was not reliable and that the K9 did not alert. However, the appellate court held that defendants were rehashing already rejected arguments and did not bring up any new facts or law nor did they demonstrate that they suffered manifest injustice from the trial court. The appellate court upheld the denial of the motion to suppress. “The Tenth Circuit has made it abundantly clear that a motion for reconsideration is not a vehicle for a losing party to revisit issues already addressed.”

Note: There was no description of what actually happened in this case as the appellate court opinion basically says the trial court made the right decision. So as far as I can tell, the K9 sniff took place while the rest of the traffic investigation was going on, which is allowed.

Mitchum v. City of Indianapolis (Indiana 2021) 2021 U.S. Dist. LEXIS 129134
Excessive Force; Qualified Immunity; Monell Doctrine

The Mitchums were sitting on their back porch while LE was searching in their neighborhood for two carjacking suspects. One suspect was in custody in the yard next door to the Mitchums by the time the K9 team arrived. LE informed the K9 team that the second suspect did not appear to be armed. The K9 handler asked for three officers to back her but warned them to give the team space as the K9 was not social. Handler began the track at the corner of the block where the Mitchums lived, making announcements of the presence of a K9 and her intent to deploy the K9. The K9 team and back up officers searched the backyards, wood line and brush of neighboring houses to the Mitchums. K9 began barking and pulling toward the suspect already detained in the neighboring yard. Handler redirected the K9 to search for the other suspect. K9 was on a 6 foot lead and was walking ahead of handler on his search. It was unclear whether handler gave an announcement of the team’s presence when the team entered the Mitchums’ backyard. The K9 turned the corner onto the Mitchums’ back porch and bit Mr. Mitchum on the leg. It was also unclear as to how handler got the K9 to release Mr. Mitchum, but handler was successful. However, the K9 then immediately bit Mr. Mitchum on the foot.

At least one officer on scene was aware of Mr. Mitchum’s presence on his back porch as this officer had talked to Mr. Mitchum after the first suspect was apprehended, but this information was not passed onto the K9 team. The Sergeant called as a witness (unclear who called him as a witness but he definitely benefitted the Mitchums) testified that the bite was preventable for several reasons; 1) LE failed to warn the Mitchums that a K9 team was in the vicinity and failed to tell them to go inside or elsewhere to ensure their safety; 2) handler failed to shorten the lead prior to the K9 rounding the corner (seems to imply the K9 was out of sight of the handler when the bite occurred) and 3) there was a failure of communication to the K9 team of the presence of civilians.

LE claimed that there was no unlawful seizure because LE did not intend for the K9 to bite Mr. Mitchum; their intent was for the K9 to locate and apprehend the carjacking suspect. However, the cases cited by LE to support their position typically involved an innocent bystander who got in the way of the police officers who were actively apprehending a suspect. There, the force in question had a suspect in mind and in sight; here, however, while LE claimed that the purpose of the search in Mr. Mitchum’s neighborhood was to find a carjacking suspect, the limited facts presented to the court in the motion for summary judgement suggest that K9 was released to find a human, any human, in the area. First, K9 was given no scent to follow and it is unclear whether LE knew if the second suspect was still in the Mitchum’s neighborhood as it was disputed whether a perimeter had been set up. When K9 was first released, he backtracked to the first suspect who was sitting in handcuffs by the street in front of Mr. Mitchum’s house, which suggests that this is the scent that K9 was targeting and pursuing. Next, K9 was redirected to conduct an area search with the command “Zuch.” K9 was trained that when given the command “Zuch”, K9 was to locate a human being and engage that human being, and it appeared K9 performed according to his training (no evidence he was specifically put on the trail of the second suspect). Therefore, at this point in the search, the object of the force was no longer an identified subject, but that of any human being. Mr. Mitchum’s freedom to leave was eventually terminated by handler’s intentional deployment of K9 bi to “Zuch” in the area of Mr. Mitchum’s backyard. Therefore, the court found a seizure which then implicates the Fourth Amendment.

LE then directed the court to cases that address the issue of transferred intent in the case of a K9 biting an innocent bystander rather than an intended suspect. These cases were also distinguishable: in one, the K9 ran away from his handler and bit a mother running to protect her child. In the present case, however, K9 was given a command to search the area for any human being and ultimately found a human being. Thus, the object of handler’s command was a human, while in cited cases, the K9 had not received any command and the bite was clearly accidental. After analyzing the additional cases cited by LE, the appellate court agreed with Mitchum that this was not a case of transferred intent. K9’s command was to search the area for a human being, and K9 completed his search by finding and biting Mr. Mitchum. In this case, K9 was the instrumentality that was set in motion to search the neighborhood and find a human being; K9 found a human being; and Mr. Mitchum was that human being. As such, taking the facts in the light most favorable to the Mitchum, a jury could find that Mr. Mitchum was seized under the Fourth Amendment.

The court then analyzed whether the force used by LE was reasonable by employing a Graham v. Connor analysis. The Court considered, among other things, (a) the severity of the crime at issue, (b) whether the suspect posed an immediate threat to the safety of others, and (c) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Where the use of force in question is the use of a police dog, courts often weigh four additional factors: (d) whether the officer warned the subject that he would deploy the dog; (e) the degree of control the officer maintained over the dog; (f) whether the officer terminated the dog bite within a reasonable amount of time; and (g) whether alternative tactics reasonably were available. Here, a carjacking was reported, and the victim’s vehicle had been located in the Mitchum’s neighborhood. The first suspect had been apprehended near the Mitchum’s, but the second suspect had not been located. Handler proceeded toward the apprehension site of the first suspect, and saw that individual detained in handcuffs with 4-5 officers on site. It is disputed whether a perimeter was established. Handler knew that suspect was not armed. While handler made several announcements at the beginning of the track, it was disputed that she made any additional announcements when entering the Mitchum’s property. In addition, handler gave the command which directed K9 to search for and bite a human and the bite ultimately was accomplished when the K9 was out of sight of the handler. It was also disputed whether the second suspect was actually in the vicinity because there was conflicting evidence of whether a perimeter was established. Finally, there was a dispute as to whether handler’s attempts to have K9 release the bite was immediately effective. Finally, it was disputed that the K9 team was properly or consistently trained. Mr. Mitchum’s expert in dog training stated in his report that K9’s training records do not show that he was ever trained on a track longer than 150 yards or trained on a track with any age to it. K9’s records showed that he was evaluated on 3 tracks from 2016-2019, which would not indicate that there was sufficient training or evaluation as to K9’s ability to track a subject. The recommended industry standard is for each patrol dog team to receive approximately 204 hours per year of apprehension training; K9’s records showed a three-year total of approximately 76 hours of apprehension training. Moreover, no records were provided regarding the performance results of K9’s trainings. Furthermore, LE have failed to present any records of handler’s attendance at trainings. As such, one could conclude that a lack of evidence as to training means that handler and/or K9 were inadequately trained.

The court also stated that it was possibly unreasonable for handler to grab K9’s collar and “pull off strong” before attempting verbal commands. Mitchum’s expert indicated that pulling off strong creates a stronger drive for and lengthens the duration of the bite. Sergeant testified that he trains his K9 officers to use the “pull off strong” method so that the officer does not have to wait for the dog to respond to a verbal command; but by implementing this training, Sergeant in effect teaches his officers and his dogs to increase the intensity and duration of any bites, intentional or accidental. The industry standard provides that a dog who does not disengage or release from a bite with verbal commands will fail certification. With this evidence, one could conclude that this IMPD training, and handler’s use of that training, was unreasonable under the circumstances.

To make matters worse, K9 had a history of accidental bites before biting Mr. Mitchum. K9 bit handler’s 16-year-old female neighbor while not under any command, and bit another IMPD officer while not under any command. After biting Mr. Mitchum, K9 then went on to bite handler. K9 was then reassigned to a Sergeant, and went on to bite another IMPD officer. Additionally, there were records attributing at least three bites of police officers to K9 in a 4.5 year period. Mitchum’s expert concluded that K9 was demonstrating a pattern of biting that got predictably and progressively more frequent and more aggressive, from the small scratch on the 16-year-old neighbor to a severe bite of Mr. Mitchum. The court could conclude that handler and IMPD knew of K9’s predisposition to accidental bites, yet did nothing to correct that behavior, and that corrective action could possibly have prevented the accidental bite to Mr. Mitchum.

Since the evidence most favorable to Mr. Mitchum shows that the deployment of K9 was unreasonable, Mitchum’s Fourth Amendment claims remained pending.

Moving on to qualified immunity, the court held that since there were valid disputes in the evidence, LE was not entitled to qualified immunity.

The court then addressed the Monell claim and stated that because a reasonable fact finder (jury) could conclude that the failure to properly train K9 officers (as discussed above) as a “policy” reflected deliberate indifference and was the moving force behind the handler’s conduct. The court also allowed a negligence claim to go forward as well.

Note: There is so much wrong here in this disturbing case. This case demonstrates the dangers of poor and deficient training and poor record keeping.  It’s a good case to read to see how a failure of policy, failure to adequately train and failure to adequately deploy as well as an overall failure of having a game plan during the actual deployment can create a situation where the agency and the handler are left holding the bag in terms of being liable for the K9’s actions. Policies should be reviewed regularly and training requirements must be met consistently, including training by other entities (other than in house trainings) so that trends in the law can be adequately addressed by both the handler and the agency. This was an avoidable bite which unfortunately resulted in physical injury to Mr. Mitchum and will be a big payout for the agency. Finally, The additional factors (additional to the 3 Graham factors) that are utilized when a K9’s behavior is alleged to be excessive force are well laid out here as well.

United States v. Markeith (Georgia 2021) 2021 U.S. Dist. LEXIS 129159
Traffic Stop; Odor of Marijuana as Probable Cause

The DEA was conducting a multi-state drug investigation where they had a tip that drugs were being brought to Georgia from California on a private charter flight. It landed in Georgia in December of 2017 sometime before dawn. DEA watched as two vehicles approached the plane; a Sprinter van and a Econoline van. About 11 people got off and 37 large packages wrapped with Christmas paper were unloaded into the vans. The Econoline was followed and stopped by a local trooper when LE saw no headlights or taillights illuminated. The stop was accomplished about 0600. As trooper approached, he could smell the strong odor of marijuana. There were three occupants and Markeith was a passenger. Driver lied about his ID. All occupants directed out and told that the trooper could smell marijuana and they were asked if anyone knew why. A passenger (unknown if Markeith) handed over a handful of joints. Trooper, based on the odor and presence of joints, searched the van. Through a tear in the wrapping, trooper saw a green leafy substance in one of the boxes. All occupants were arrested and phones taken. Ultimately, there was over 500 pounds of marijuana.

The court held that at a minimum, reasonable suspicion supported that stop (after a long analysis of conflicting testimony about the dimness of the taillights, etc.) The odor of marijuana detected as the trooper approached supplied probable cause to search the vehicle.

Note: Marijuana is still illegal in Georgia (although some cities have decriminalized it) and still illegal in the federal system (but that may be changing in the near future. See Marijuana Update, above).

United States v. Owens (Maine 2021) 2021 U.S. Dist. LEXIS 130244
Traffic Stop; Prolonged Detention

In June of 2019, Owens was a passenger in a car stopped for speeding and smoking marijuana in the car. The car had New Jersey plates. The driver, who instructed Owens to film with his cell phone, was ultimately removed from the car and handcuffed but passed all FSTs. Handler arrived on scene and although a K9 alert was alleged, there actually was no sniff (conceded by the government in court). Owens was removed from the car while the sniff was supposed to take place. About $5000 in cash was found in the car. A ticket was issued for speeding. Driver made a remark that LE kept some of the cash. LE then ordered driver out and made him count his money (LE said that it was Owens who challenged LE on the money, but the government conceded it was the driver). Driver and Owens were then allowed to proceed once the count was accomplished. It was apparent from the comments made by LE that LE suspected driver and Owens of drug trafficking.

In October of 2019, the same LE was on patrol when he saw a black Kia (previous vehicle was not described) following a tractor trailer in the middle lane at an unsafe distance as it was nighttime and raining. The registration had expired. When lit up, the car pulled over into the median rather than the shoulder. When directed by loudspeaker, driver moved from the median to the shoulder. Owens again was a passenger in the vehicle (in the front seat; another male was in the back seat, initially seen to be sleeping). Handler recognized Owens. There was an used Q-tip on the center console. Driver retrieved documents about the car and her ID; Owens told LE his ID information and the backseat passenger produced his driver’s license. Driver had to open the trunk to retrieve her license. LE noticed an empty, intact plastic sandwich baggie in her wallet. She said she had celery sticks in it which she ate earlier. There was also a clean plate in the trunk. Driver claimed to have been living in the car for a few weeks. Based on his observations as stated above along with driver’s nervousness, LE then believed he had enough reasonable suspicion to conduct a drug investigation. Driver never did find her license. A back up officer arrived. LE then verified driver’s ID by checking her information against a database. During that process, LE asked driver about her travels and her criminal history. She said she was coming from New York, but couldn’t remember the location and she also had a drug related conviction about 8 or 10 years previously.

About 8.5 minutes into the stop, LE received confirmation of the driver’s identity. LE did not issue a citation at that point, but continued to question driver while making calls for a K9 team. Driver expanded on her travels and how she knew her passengers. Once the K9 team was on the way, about 20 minutes into the stop, LE then talked to the passengers who were still in the Kia. Their responses were consistent with driver’s. LE also confirmed with the owner of the car driver’s story. He then waiting in silence for the K9 team to arrive. About 46 minutes into the stop, the K9 team arrived and alerted with both passengers inside. LE removed Owens, handcuffed him and Terry frisked him, finding cocaine tucked under the waistband of his pants.

Owens filed a motion to suppress claiming a prolonged detention and a violation of privacy rights for the Terry frisk. The court addressed the prolonged detention first, holding that to prolong the traffic stop as LE did, there had to be additional reasonable suspicion of criminal activity other than the traffic offense. The court found that the “Rodriguez” moment (the point at which LE began to prolong the stop or go outside the traffic investigation) was when he received information that confirmed the driver’s identity. However, LE did not finish the traffic stop at that point, but went on trying to find a K9 team and talking further to the driver and then the passengers. The court therefore found that LE abandoned the traffic-related purpose in pursuit of a drug investigation, detaining the car and its occupants for additional time. By failing to proceed with the traffic mission once he confirmed the driver’s Maine license, he prolonged the stop.

The court then moved to whether LE had a reasonable suspicion of criminal activity of drugs, at the time he confirmed the driver’s identity, to justify expanding the stop’s mission and duration. The Government contends that by the time that LE had confirmed the driver’s name and the status of her license, he had developed a reasonable articulable suspicion of criminal activity based on the following facts: (1) the driver failed to properly pull over by stopping in the left median; (2) the driver appeared disheveled, suggesting possible drug use; (3) the driver was nervous and was unable to identify where in New York she had travelled from; (4) the driver stated that she had slept in the car while in New York, and had taken money set aside in the car’s center console in order to purchase food; (5) the driver had a prior felony conviction for a drug-related offense; (6) the back seat passenger remained sleeping even after the vehicle had come to a stop; (7) the Q-tip, baggie, and plate suggested drug activity; and (8) LE recognized Owens from the June stop. The court held that the Government has failed to demonstrate the existence of several of the key reasons LE cited in support of a reasonable articulable suspicion of criminal activity that permitted extending the stop. These include the driver’s physical appearance and demeanor; the significance to be afforded to an unused Q-tip, clean plastic baggie, and a clean plate; and Owens’s demeanor in relation to the demeanor he exhibited in June. Moreover, LE’s mistaken memory in October of Owens’s role in the vehicle stop in June necessarily affected the meaning that he ascribed to the other factors that were present during the October stop. That association contributed to LE’s relatively quick decision that the stop should be prolonged so that he could conduct a drug investigation. An objective assessment of what remains—the driver’s initial pulling-over in the left-hand median, the driver’s professed nervousness and prior conviction, and a rear-seat passenger asleep at 3:15 in the morning—does not rise to the level of a reasonable articulable suspicion that would justify prolonging the stop.

Note: Not sure why LE was unable to correctly remember/testify to events that had taken place in the recent past, but that lack of ability or memory should be addressed by his agency. Several things he testified to the court found to be wrong. This untruthfulness or at least a failure to recall properly was a big reason that the government lost this case. In addition, LE’s analysis of what he found was flawed; while Q-tips, baggies and plates can be used for consuming drugs, this Q-tip was clear, the baggie had no residue and the plate was clean, indicating that these items were possessed for their original purposes.

Thompson v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 404
Traffic Stop; Detention; Odor of Marijuana as Probable Cause; Community Caretaking Duty

Driver Thompson was contacted by LE because of erratic driving. Thompson stopped his car prior to LE being able to light him up, but as LE pulled in next to it, he activated his emergency lights to let motorists behind him know he was there because his vehicle was somewhat in the traffic lane. LE approached the parked car and could smell a strong odor of marijuana. Thompson appeared to be under the influence based on signs of intoxication and failure of FST. LE also determined he was suspended. When the driver’s door was opened, LE saw a Rx bottle for Thompson with a white powdery substance. Inside the ashtray was a similar bottle. In the front seat was a bag containing a large amount of cash. When being transported to the jail, Thompson’s pants slid down and two large baggies fell out; they contained marijuana, crack, cocaine, methamphetamine and numerous pills. Thompson reeked of marijuana.

The court held that the activation of blue lights in this instance was not enough to constitute a show of authority because LE had not restrained Thompson’s liberty at that point. In addition, when LE smelled the odor of marijuana as soon as he began approaching Thompson’s vehicle, this provided him with the necessary basis to continue the stop.

The court then addressed the community caretaking function and defined it as there must be some specific and articulable facts that would lead the officer to reasonably believe the citizen is in need of assistance. Therefore, the court held that the community care doctrine applied in this case to support the stop. While LE had not observed any traffic violations or criminal activity; there was no traffic or any pedestrians in sight; and there was no evidence that the driver needed or asked for any assistance from him, LE’s testimony that he suspected the driver may have been impaired is enough to support the application of this doctrine in this instance.

Note: Nothing really earth-shattering here, although there were two theories of admissibility, which is always good. However, I think the community caretaking analysis was a bit thin. Kentucky has not legalized marijuana.

State v. Lelm (North Dakota 2021) 2021 ND 118
Traffic Stop; Search Incident to Arrest; Alert as Probable Cause; Inevitable Discovery

During a traffic stop, the driver was arrested on outstanding warrants. The driver provided consent to search the vehicle. The passenger, Lelm, was seated in the front passenger seat with his backpack on his lap. LE called for a K9 team. When the K9 team arrived, Lelm was asked to exit the car. He complied, taking his backpack with him some distance away from the vehicle. The K9 alerted on the vehicle and a search revealed a gun and drugs. The K9 did not pay attention to the backpack (unknown if he was instructed to sniff the backpack). LE then searched Lelm’s backpack, finding marijuana and drug paraphernalia. Lelm then complained of chest pain so an ambulance was called. The backpack would have been searched prior to transport in an ambulance per ambulance personnel request.

The appellate court examined whether the backpack was lawfully searched under the automobile exception. The court held that because the backpack was not within the vehicle at the time of the K9 deployment, LE did not have probable cause to search the backpack and the automobile exception did not apply. The court also held that in the absence of either a concern for officer safety, or a need to preserve evidence from destruction or concealment, the search incident to arrest exception to the requirement to obtain a warrant does not apply. Since the testimony was that the backpack was searched solely because of the K9 alert on the vehicle, the court held that this exception did not apply. Finally, the court addressed whether the backpack would be subject to inevitable discovery. While the government asserted the backpack would be searched prior to an ambulance journey, the testimony of LE was that the backpack could only be searched in that instance if the owner consented. Otherwise the backpack would be taken back to the station. Therefore, the court held that the contents of the backpack would not have been subject to inevitable discovery.

Note: The holding that the backpack could not be searched pursuant to owner’s arrest is the most troubling here. It appears that the appropriate evidence was not elicited at the trial court level; that an alert to a vehicle would indicate drugs were in the vicinity. Here, LE found guns and drugs in the vehicle. Lelm was a passenger in that vehicle and apparently knew about the gun. So the government could have argued that if Lelm knew about the gun, it stands to reason that the backpack could also contained contraband, including a gun. In addition, it is common knowledge to LE that if you find drugs in a car, you are probably going to find dope on the person of people in the car including any personal luggage like a purse or a backpack. It seems that this was a case of a poor record in the trial court biting back at the appellate level. As a side note to the note, I found it odd that there was only the statement that the K9 did not “pay attention” to the backpack. If it was on the ground away from owner because the owner left it there while being treated by medics, it would be available for a free air sniff. But on this record, I can’t tell what happened.

Brown v. Kazmierski (7th Cir. 2021) 2021 U.S. App. LEXIS 19962
Traffic Stop; Reasonable Detention; Prolonged Detention; Alert as Probable Cause; Terry Frisk

LE saw a vehicle that had a partially obstructed plate and no front plate. LE was able to determine that the owner had a suspended license. Since the driver matched the description for the owner, LE signaled for her to pull over. She slowed, making LE think she was resisting the signal to stop, but eventually she pulled over. The driver was not the owner, but claimed she recently bought the car and had not yet transferred title. Brown was the passenger.

As LE approached the vehicle, he could smell an overwhelming odor of air freshener. Based on his training and experience, he knew that such an odor could be a masking agent to hide the odor of drugs. The stop was also on an interstate that was a drug corridor. LE learned that both occupants had drug related convictions. In particular, Brown had just completed serving a term of supervised release for possessing and intending to distribute cocaine and for possessing a firearm in furtherance of a violent crime. With this information, LE radioed to the K9 team. The team arrived 10 minutes later, and the K9 alerted to drugs in the car.

LE then patted Brown down and found a softball sized ball of heroin in his underpants.

Brown filed a civil rights lawsuit. He first complained that LE’s initial stop of the vehicle was illegal. However, the court held that LE is entitled to run a registration check on a vehicle and when he learned that the vehicle’s owner was suspended, he satisfied the reasonable suspicion threshold to conduct the stop.

Brown then complained that when LE determined that the driver did not have a suspended license, LE then unreasonably prolonged the stop from that point. The court disagreed, holding that the presence of an overwhelming scent of air freshener along with the fact that neither occupant was the car’s registered owner, a criminal-record check revealed that they both had drug convictions, and LE thought that the driver was evading the signal to stop combined to create a reasonable suspicion that other crimes were happening other than that for which the contact was made. Therefore, the contact with the K9 team and the wait for the team to arrive and perform a sniff was justified.

Brown then complained about the search of his person. However, LE knew that Brown had just completed his sentence for drugs crimes in which a gun was used and the K9 had just alerted to the car Brown had been sitting in. This gave LE ample reason to suspect that Brown may have been armed, justifying the Terry frisk. He also complained that the search extended to his groin. The court disagreed again, holding that in this situation, Brown was possibly armed so the search was reasonable. In addition, Brown did not claim that his genitalia were exposed to any passersby when LE reached into his underpants.

Note: Nothing really new here, but a good, textbook presentation of LE obtaining information and using that information to continue to build the investigation successfully.

United States v. Garmon (Virginia 2021) 2021 U.S. Dist. LEXIS 126338
Traffic Stop; Prolonged Detention

Traffic stop for speeding and texting while driving. The plate reader gave the car’s history as traveling westbound on 1-40 in Holbrook, Arizona towards Phoenix on two days before the stop. LE knew that based on his years of experience and knowledge of drug trafficking cases in Arizona, it was suspicious that less than two-days after arrival, the white Kia would be traveling on Interstate 17 at Milepost 267 near Holbrook, about three hours outside of Phoenix and exiting Arizona. Based on his experience, LE believed that the vehicle’s quick travel in-and-out of Arizona was consistent with drug trafficking prevalent in the region. The court held that this initial stop was supported by reasonable suspicion.

After stopping the vehicle, LE approached the passenger’s side, and driver Johnson lowered the front passenger’s side window approximately two inches. He noted that Johnson was in the process of sending a text. LE then asked Johnson for his driver’s license and Johnson said he did not have his driver’s license but said that his name was “Kris Clark.” During this initial questioning, LE observed that Johnson was sweating profusely and breathing heavily. LE asked about warrants or weapons in his possession as well as paperwork on the car. Johnson denied possession of them all. Garmon was in the back seat avoiding eye contact with LE. She denied possession of a driver’s license. The appellate court found this part of the investigation lawful based on the factors outlined: the vehicle’s quick in-and-out of Arizona based on the plate reader system, the lack of licenses or identification for both Johnson and Garmon, the lack of the rental agreement, and Johnson’s abnormal physical demeanor notwithstanding the Arizona heat.

LE then asked Johnson to exit the vehicle so LE could issue a warning for the violations. After Johnson stepped out of the driver’s door, LE asked Johnson again whether he had any weapons and Johnson said no. However, Johnson hinked up and held his right arm to his side. A Terry frisk at that point revealed a gun. Johnson claimed he forgot he had a gun. Back up was then called. While awaiting back up, LE continued to question Johnson about licenses and travels. Johnson then lied about his name. Johnson also lied about his travels based on the information from the plate reader. LE had back up (who had arrived) handcuff Johnson and detain him based on his investigation.

The court found the pat down lawful based on these facts: finding the concealed weapon after Johnson had lied about possessing it; Johnson stating that they had been in Arizona for 5 days (and then 4) which mismatched with the plate reader; and Johnson’s inability to correctly spell his name of “Kristopher Clark” after numerous attempts.

LE then approached and talked to Garmon. He had her step out and questioned her about Johnson and their travels. LE returned to Johnson and confronted him with Garmon’s inconsistent answers. LE then completed the warning citation and explained it to both Garmon and Johnson. Consent to search was granted by Johnson but almost immediately revoked. LE then directed the K9 team to sniff the car. The K9 alerted. Two pounds of meth found in the trunk.

The Court found that there was overwhelming evidence supporting LE’s reasonable articulable suspicion that crime was afoot and, thus, gave him the additional reasonable suspicion to expand the investigation to conduct a K9 sniff: the vehicle’s two-day quick in-and-out of Arizona based on the plate reader system; neither Johnson nor Garmon had driver’s licenses or any form of identification, the lack of the rental agreement, Johnson’s abnormal physical demeanor (notwithstanding the Arizona heat); Johnson carrying a concealed firearm and lying to LE multiple times about it; Johnson’s and Garmon’s conflicting stories about their presence in Arizona, timeline, where they were staying, and purpose there; Johnson possibly being a prohibited person since Johnson admitted he was previously incarcerated; and, Johnson’s inability to properly spell his fraudulent name (“Kristopher Clark”) despite numerous attempts. Furthermore, LE’s incremental extension of the traffic stop is justified because as LE conducted the traffic stop, he continued to discover more evidence of criminal activity until he finally had sufficient circumstances to merit a K9 sniff.

Note: The court also addressed whether the passenger had standing in a rental car which neither rented. The court held that he did based on the Rakas v. Illinois case. Court also kept saying “dog-sniff search” which is incorrect; a sniff is not a search according to the U.S. Supreme Court. While it didn’t affect the reasoning of the court, such inaccurate language can cause confusion. Please refer to your K9’s deployment as a “sniff” and not a search. 

Sanz v. City of Vallejo (California 2021) 2021 U.S. Dist. LEXIS 122764
Excessive Force; Bane Act

Sanz was being chased by LE because he was driving a stolen car. He eventually left the car and ran on foot, ultimately hiding under some bushes. A K9 located and bit Sanz. Sanz alleges that LE then struck him several times while he was laying on the ground with the K9 biting him for 2 minutes. He then claimed he was dragged to the street and beaten into unconsciousness. He claimed his injuries of a broken leg and puncture wounds were inflicted by the K9 and other injuries inflicted by the beatings. (This review will not address the court’s analysis of the beatings alleged by Sanz).

Sanz asserted four claims: (1) violation of his Fourth Amendment rights pursuant to 42 U.S.C. § 1983; (2) battery; (3) negligence; and (4) violation of California Civil Code § 52.1 (the “Bane Act”). Defendants (LE) moved to dismiss all claims for failure to state a claim upon which relief may be granted.

The court first ruled that the first three claims would advance (motion to dismiss denied) because the court decided that the body cam footage was subject to some interpretation and therefore, the complain filed by Sanz legally stated causes of action.

The fourth cause of action was a Bane Act claim. The Bane Act creates a private cause of action against anyone who “interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by an individual or individuals of rights secured by the Constitution or laws of the United States, or laws and rights secured by the Constitution or laws of [California].” Cal. Civ. Code § 52.1. A plaintiff bringing a claim pursuant to the Bane Act “must show (1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion.” “[T]he egregiousness required by [§] 52.1 is tested by whether the circumstances indicate the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the wrongful detention.” However, “a mere intention to use force . . . is insufficient” and the defendants must have “intended not only the force, but its unreasonableness, [and] its character as ‘more than necessary under the circumstances.'”

Based on these factual allegations, the court held it is plausible that LE intentionally interfered with Sanz’s constitutional right to be free from unreasonable seizure and that LEs actions were objectively unreasonable and “more than necessary under the circumstances.” While there is no indication LE specifically intended to violate Plaintiff’s constitutional rights, the Court finds the facts alleged adequately show LE “acted with reckless disregard” towards Plaintiff’s Fourth Amendment right to be free from unreasonable seizure. Based on the foregoing, the Court finds Plaintiff has sufficiently pleaded a Bane Act claim against Defendants, as the Court can “draw the reasonable inference that [LE are] liable for the misconduct alleged.”

The court then turned to the claims against the agency, the City of Vallejo. The court held that as the Court has found that Sanz has sufficiently pleaded a Bane Act claim and has not conclusively determined whether LE’s other state law claims are viable, LE’s Motion to Dismiss all state law claims against City of Vallejo was DENIED.

Note: Since this was a motion to dismiss, the K9 bite and the alleged beatings were lumped together and not analyzed separately. It is unclear if the handler was alleged to be involved in the beatings. As this case goes forward, and the handler was not engaged in the beatings, he should consider separating his use of the K9 from the alleged beatings by other officers in further proceedings.

State v. Brown (Ohio 2021) 2021-Ohio-2193
Prolonged Detention;

LE had been observing an area of high activity of drug trafficking in which hand to hand transactions were occurring. After seeing what LE believed to be a hand to hand transaction with a red pickup, LE noted that when the pickup left, Brown followed it. When the pick up was stopped, Brown also stopped momentarily then “slow-rolled” by while looking at LE. LE testified that this piqued his interest because he believed that Brown was a dealer following a buyer in the truck. LE called for a marked unit to stop Brown and a K9 team arrived 18 minutes later and alerted. At the motion to suppress, LE conceded that Brown had not violated any laws at the time he was stopped and detained.

The government argued that LE had enough reasonable suspicion of drug crime that the wait for the K9 was lawful. The court stated that in this case, LE admittedly did not see Brown commit a traffic violation or engage in a hand-to-hand drug transaction. LE conceded that Brown had not violated any laws at the time he was stopped and detained. Rather, LE had Brown stopped to investigate drug dealing because he “felt like, with the drug transactions that had been going on and Mr. Brown being behind the vehicle, that there was more to it than what meets the eye.” LE’s belief was based upon his experience that drug dealers often conduct counter surveillance on drug buyers to ensure the buyer is not a police officer or confidential informant, and then communicate that information to the individuals selling drugs at that location. However, LE admitted that he had never seen that type of activity occur at the Mart during his two to three months surveillance of the Mart. LE suspected that Brown was a drug dealer conducting counter surveillance because Brown was behind the pickup truck at the Mart, Brown drove out of the Mart behind the pickup truck, and Brown slow-rolled and looked in the direction of the officers pulling over the pickup truck. The court concluded that this information amounted only to a hunch which was not sufficient to supply reasonable suspicion of a crime to wait for the arrival of a K9 team.

Note: This was a relatively inexperienced officer so the explanation of what he saw and how he interpreted it was shaky. In addition, there is no information as to what LE told the handler about the stop. Best practice is that you as the handler know what is going on and make an independent judgement of whether to deploy.