Meyer’s K9 Law

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 (A caution here: some cases are unpublished (Unpub.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

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

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

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

MARIJUANA UPDATE FOR JULY 2022

FEDERAL

The U.S. House of Representatives included some cannabis reform legislation in its annual defense package, while Pennsylvania’s governor approved a bill to let banks and insurers do business with Keystone State medical cannabis operators. Here are the major moves in cannabis reform from the past week.

Senate Democrats on Thursday introduced a cannabis legalization bill that would remove it from the list of drugs in the Controlled Substances Act and impose a regulatory scheme not unlike what is in place for alcohol and tobacco, according to a statement.

A U.S. Senate subcommittee on Tuesday held the chamber’s first-ever hearing on a bill to end federal cannabis prohibition, with the Democratic majority and Republican minority tussling along familiar partisan lines over the criminal justice and public health implications of legalization.

STATES

Arkansas has proposed a referendum on the November ballot that would allow medical shops already in exsistence to add recreational sales and open a recreational sale store. A lottery would allow 40 more shops. This referendum is still awaiting final approval before

South Dakota has attempted to pass both medical marijuana and recreational marijuana laws, but was unsuccessful. Now a referendum for recreational use is on the November ballot.

Mississippi enacted a medical marijuana program after a court struck down a medical marijuana referendum. This will allow controlled purchases of marijuana from licensed and regulated outlets.

Rhode Island has fully legalized marijuana for recreational use and allows for 33 dispensaries across the state.

Maryland lawmakers were unable to pass legalization legislation, so a referendum was posed to the voters. It is expected to pass in November. Maryland does allow medical marijuana and has decriminalized possession of 10g or less.

In Pennsylvania, medical marijuana is legal, but recreational cannabis remains illegal in Pennsylvania. However, some major cities have chosen to decriminalize small quantities of recreational cannabis. The legislature is trying to re-criminalize hemp-derived delta-8. Marijuana-derived dleta-8 is illegal.

New Jersey now has government sanctioned dispensaries that are allowed to sell 1 ounce of marijuana for recreational purposes.

The District of Columbia may have found a workaround for Congress’ refusal to let the district set up a regulated recreational market. DC decriminalized up to 2 ounces of marijuana (to possess and transfer (no sales)) but it still remains illegal. DC also allows medical marijuana.

INDEX OF CASES REVIEWED FROM JUNE 2022 FOR JULY 2022 UPDATE

State v. Edwin Ronald Glass (Connecticut 2022) 2022 Conn. App. LEXIS 236 – Tracking Evidence

Hammontree v. State (Texas 2022) 2022 Tex. App. LEXIS 5346 – Traffic Stop; Prolonged Detention

United States v. Garrett (New York 2022) 2022 U.S. App. LEXIS 20846 (Unpublished) – Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention; Alert as Probable Cause

Jackson v. Cty. of Ulster (New York 2022) 2022 U.S. Dist. LEXIS 132123 – Excessive Force; State Claims of Assault and Battery; Monell Liability

United States v. Orozco (North Carolina 2022) 2022 U.S. App. LEXIS 20390 – Alert as Probable Cause; Currency Sniff

Cross v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 779 – Traffic Stop; Alert as Probable Cause

United States v. Randall (Wisconsin 2022) 2022 U.S. Dist. LEXIS 125971 – Odor of Marijuana as Probable Cause

State v. McMillia (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 1307 – Odor of Marijuana as Probable Cause

United States v. Mayo (Georgia 2022) 2022 U.S. Dist. LEXIS 128099 – Odor of Marijuana as Probable Cause; Foundation of Reliability; Inevitable Discovery Rule; Good Faith Exception

Jarvela v. Washtenaw Cnty. (Michigan 2022) 2022 U.S. App. LEXIS 20286 – Excessive Force; Deployment Warnings; Qualified Immunity

United States v. Thomas (Minnesota 2022) 2022 U.S. Dist. LEXIS 130738 – Odor of Marijuana as Probable Cause; Prolonged Detention; Automobile Exception

Harvey v. Butcher (Utah 2022) 2022 U.S. App. LEXIS 19420 (Unpub.) – Successive Traffic Stops; Qualified Immunity

People v. Lopez (Colorado 2022) 2022 COA 70M – Traffic Stop; Alert as Probable Cause; Marijuana Law

State v. Sunkle (Ohio 2022) 2022-Ohio-2442 – Traffic Stop; Alert as Probable Cause; Prolonged Detention

State v. Cameron (North Carolina 2022) 2022-NCCOA-475 (Unpub.) – Traffic Stop; Reasonable Suspicion; Alert as Probable Cause;

State v. Howard (North Carolina 2022) 2022-NCCOA-476 (Unpub.) – Traffic Stop; Probable Cause; Odor of Marijuana as Probable Cause

State v. Simmons (Louisiana 2022) 2022 La. App. LEXIS 1084 – Traffic Stop; Odor of Marijuana as Probable Cause

People v. Ayon (California 2022) 2022 Cal. App. LEXIS 591 – Traffic Stop; Prolonged Detention

State v. Jensen (Wisconsin 2022) 2022 Wisc. App. LEXIS 581 (Unpub.) – Traffic Stop; Prolonged Detention; Alert as Probable Cause

United States v. Pollard (Ohio 2022) 2022 U.S. Dist. LEXIS 116492 – Traffic Stop; Alert as Probable Cause; Prolonged Detention; Reliability Foundation

State v. Rose (Delaware 2022) 2022 Del. Super. LEXIS 274 – Odor of Marijuana as Probable Cause

CASES REVIEWED FROM JUNE 2022 FOR JULY 2022 UPDATE

State v. Edwin Ronald Glass (Connecticut 2022) 2022 Conn. App. LEXIS 236
Tracking Evidence

Defendant was convicted of robbery and home invasion burglary. During the crimes, he left behind in a struggle with the homeowner was a latex glove tip. A K9 was able to assist LE in finding some of homeowner’s property, which had been discarded in the neighborhood, and tracked the intruder’s scent past the defendant’s house to a garage that was a couple of houses north of the defendant’s, where the trail disappeared. The glove tip revealed touch DNA mixture for which defendant was a major contributor.

Defendant appealed, claiming that the evidence was not sufficient for the jury to find him guilty. The court ultimately agreed and reversed the verdict. In the opinion, there was a discussion of the K9 evidence, which was to be lacking.

The K9 was ordered to track and that track, which covered fourteen homes, took him past the defendant’s house, where K9 did not pause, but brought him to a garage window at 21 Woodycrest Drive, a couple of houses away from the defendant’s. K9 stopped at only one address, and it was not the home of the defendant. Although the state explains the failure of K9 to track to the defendant’s house by noting that the defendant’s entering of the home would have interrupted K9’s track, handler testified that “when somebody enters a home, the dog technically can’t follow it into the home. He can bring you to the home, circle the home, get very close, a house or two next to it . . . .” K9 neither brought handler up to the house nor circled the house. Instead, he brought handler past the defendant’s house, traveling two houses beyond that house and tracking up to a garage window. Thus, the correlation between K9’s track, following the scent from V’s keys, past the defendant’s home, and the conclusion that the defendant was the intruder who had dropped the keys following the commission of the crime is weak.

Note: Defendant was found in the neighborhood and questioned, but not arrested until the DNA evidence came in. Not much more could have been done here by the K9 team if the K9 lost the track. Had the court not gotten hung up on the race card, it might have been able to see the K9’s evidence differently, such as defendant didn’t go home because he didn’t want to be caught so went to neighbor’s house instead and tried to get in through the garage window. No real explanation as to why the K9 lost the scent, but a handler would be able to testify about all the reasons a scent could be lost. It just goes to show you how a court (and people) can interpret a set of facts so that it meets their interpretation of the larger issue (guilt). That’s just how our system works, so all you can do is make sure you are ready to go when called and all your training and certification are up to date. Your K9 will get you all the evidence he or she can find, and then it’s up to you to interpret. K9 team here did nothing wrong; handler testified to what the K9 found and that’s all he can do.

Hammontree v. State (Texas 2022) 2022 Tex. App. LEXIS 5346
Traffic Stop; Prolonged Detention

LE “ran the plates” and learned that the vehicle registration was expired. A traffic stop was initiated and the driver was Hammontree, whom LE recognized from a previous encounter where Hammontree was found with a gun and marijuana. Hammontree almost immediately began behaving nervously and rummaging around in his vehicle. LE also noticed that Hammontree’s carotid artery was pulsating, which in his experience, he equated with excessive nervousness. LE noted that this level of nervousness was not something he typically saw during a routine traffic stop, and he began to suspect the possibility that additional criminal activity was afoot. As a result, LE asked Hammond tree to exit the vehicle and performed a pat-down frisk on him in the interest of safety. Then LE asked Hammontree to step to the rear of the vehicle and away from the roadway. Once there, Hammontree asked LE a question about his prior arrest arising from the previous incident, and LE succinctly answered his question. This exchange lasted approximately one minute, at which point LE asked Hammontree if he had anything in the vehicle. When Hammontree stated he did not, LE asked him if he would permit a search of the vehicle. In response, Hammontree stated that he felt “picked on,” and LE sought briefly to reassure him that his beliefs in this regard were unfounded. This exchange continued for approximately thirty-eight seconds and ended when LE again asked if Appellant would permit him to search the vehicle. In response, Hammontree embarked on a rambling soliloquy about his church, his Sunday school teacher, “Bobby,” his wife’s concern for his safety, which resulting in her taking the children away for several days, only to return earlier that day, and an incident involving other police officers’ coming to his house. While LE did not remain unresponsive to Hammontree’s palaver, his responses did little more than punctuate his varied statements, which further included advice he received from Bobby that you never should let police search your car and, particularly, when you purchase a used car, “you don’t know.” Approximately one minute, thirty-three seconds later, Hammontree concluded his musings by mentioning to LE that he had unopened beers in the front seat.

After not letting Hammontree call “Bobby” for safety reasons, LE then asked again to search and mentioned to Hammontree that as an alternative to his consenting to a search, LE could call for a dog to perform an open-air search around the vehicle. Hammontree then began a somewhat protracted expression of equivocation, wherein he spoke about his rights, as well as about how the problem with his having possessed a firearm on the occasion of his last encounter with law enforcement was not his status as a felon, but rather, due to the fact that marijuana was in the vehicle. LE briefly interjected, asking if there was marijuana in the vehicle currently. Hammondtree responded that he was unsure if there might be residue. He then stated that he was “so nervous” and again asked if he could call Bobby. LE repeated his explanation that he would not allow Hammondtree to call anyone due to safety concerns. Hammontree concluded this one minute, forty-eight second portion of the exchange, stating that he had all of his workers in his truck that day.

LE attempted to redirect the conversation again, telling Hammontree that he did not have to consent and if he chose not to do so, LE could “call for a dog.” In response, Hammontree embarked on yet another extended oration, in which he stated generally that he felt like he needed advice and he was “scared for a lot of reasons.” Appellant then stated that he felt like something was going on that the police were not telling him. When LE asked Hammontree what he meant by this, he explained that he found a device in his hunter’s pouch that appeared to be some sort of G.P.S. tracker and when he researched the model number, he discovered that it emitted a high frequency that only dogs can hear. After this one-minute exchange, Hammontree told LE that he would love to call an attorney, a preacher, or someone. LE responded, “Since you said that, let’s just get the dog.” But as LE attempted to return to his vehicle, Hammontree engaged him again for an additional one minute, forty-five seconds, asking if he could make a phone call. When LE yet again told him he could not, he asked if he could retrieve his phone from his truck. LE declined him permission to re-enter his vehicle and returned to his patrol vehicle where he arranged for the nearest K-9 unit to be sent to their location to perform an open-air sniff around Hammontree’s truck. K9 arrived, alerted and the vehicle searched. Found was nearly 350 grams of methamphetamine.

The appellate court first found that the traffic stop was valid for expired registration.

The appellate court then addressed Hammontree’s claim of prolonged detention. First, LE had the information that previously, Hammontree was found in possession of drugs and a gun. Hammontree was also very nervous and rummaging around in the vehicle. After Hammontree got out of the car, LE asked for permission to search. Hammontree responded by speaking on myriad topics and equivocations about consenting to search. However, he did admit that there might be marijuana residue in the vehicle. The whole thing about the GPS and high frequency only dogs can hear made LE even more suspicious that something criminal was going on. Also, Hammontree wanted to phone a friend and also wanted to get back into his vehicle which caused LE additional concern as well as suspicion.

Based on LE’s prior, recent encounter with Hammontree wherein he discovered marijuana and a firearm, his observations of nervous and unusual behavior and statements, Hammontree’s changing story about whether there was anything of note in the vehicle versus whether there was potential marijuana residue in the vehicle, his appearing to prepare excuses for anything that might be found in the vehicle, and his attempt to obtain permission to re-enter the vehicle before the K9 arrived to perform an open-air search, the court concluded that there was ample evidence upon which LE could rely in developing reasonable suspicion that Hammontree might have illegal drugs in the vehicle. Accordingly, based on the totality of the circumstances, the continued detention of 24 minutes while Hickey waited for the K-9 unit was justified.

In short, Hammontree sought to engage Hickey in conversation repeatedly; he simply would not stop talking. In total, the several, rather one-sided exchanges Hammontree initiated from the time he and LE were standing behind his vehicle lasted approximately seven minutes, forty-four seconds. And though LE participated in these exchanges, Hammontree did most of the talking and Hickey continually sought to redirect the matter to the subject of his consent to search. Thus, based on the video evidence, Hammontree, not LE, unnecessarily prolonged the detention.

The court then addressed the 24 minutes it took for the K9 team to arrive. Hammontree did not make a specific argument in his brief that this extended period of detention was a violation of his constitutional rights. Nonetheless, at the hearing on his motion, LE testified that on the night in question, all of his department’s K9 units were in training, so he, through a fellow officer, requested a K9 unit from a nearby department, which he stated was the closest available unit. Based on LE’s testimony that “he made every effort to get that K9 as fast as he could” and the overall level of evidence supporting reasonable suspicion as set forth above, the court held that the additional twenty-four-minute wait for the K9 unit’s arrival was within constitutional limits.

Note: I put in the entire recitation of the facts to show how much of a rambler Hammontree was. He was appartently one of those criminals that thinks if they just talk enough, they’ll be able to exhaust their opponent and be allowed to go free just out of sheer frustration. The court recognized his actions for what they were because LE had a body cam video of all of it and he wrote a great report. Remember, even if you have the best body cam in the world, your report is the first thing everyone will see and the body cam will not always be viewed. Hopefully, this starts changing but until then, a well-written report is essential. Also, Texas has not legalized marijuana.

United States v. Garrett (New York 2022) 2022 U.S. App. LEXIS 20846 (Unpublished)
Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention; Alert as Probable Cause

Garrett was a passenger in a vehicle driven by Rivera which was pulled over by LE in a vehicle stop. Garrett did not contest the legality of the stop, leaving only prolonged detention (he claimed LE failed to diligently pursue their investigation) as the issue to be addressed by the appellate court.

The appellate court found that the agents here diligently pursued their investigation of Rivera’s criminal conduct. After pulling Rivera’s vehicle over for a traffic violation, LE noticed the smell of marijuana emanating from the vehicle and observed that the car’s occupants seemed “extremely nervous.” LE returned to his vehicle, called for backup, and ran several background checks on the occupants and vehicle — a process that took about ten to fifteen minutes — which revealed that Rivera and another occupant had lied about their criminal histories. When the backup officer arrived (about fifteen minutes later), he confirmed LE’s initial observations, and the two troopers noted additional discrepancies in the occupants’ responses to questions. Within a few minutes of the backup officer’s arrival, LE called the canine unit. Though Rivera faults LE for not calling the K9 unit almost immediately, LE took reasonable steps — including verifying Rivera’s criminal background, asking the car’s occupants follow-up questions, and awaiting another trooper’s opinion — that were designed “to confirm or dispel” his suspicions. Under these circumstances, it cannot be said that the delay of thirty to thirty-five minutes between the initial stop and calling the canine unit was unreasonable.

Note: This is a great case for us, with the court recognizing that LE encounters have an ebb and flow (contact with occupants in any vehicle stop allows LE to observe and investigate as evidence reveals itself) rather than requiring LE to have a specific checklist for probable cause. The court’s conclusion that the amount of time was “reasonable” shows the court is actually applying the wrong test. Court should have addressed whether under Rodriguez the traffic stop was unduly prolonged. I think it would be the same result, just more accurate.

Jackson v. Cty. of Ulster (New York 2022) 2022 U.S. Dist. LEXIS 132123
Excessive Force; State Claims of Assault and Battery; Monell Liability

Jackson asserted that in the early hours, Jackson was looking for his friend. Suddenly, Jackson was physically accosted by two strangers, who apparently mistook him for someone else. Jackson was punched and taken to the ground. While he was on the ground, Jackson was pepper-sprayed by LE.

While he was temporarily blinded, Jackson was detained by LE. Jackson was then searched, handcuffed behind his back, and walked toward a patrol car.

While Jackson was still handcuffed behind his back a police K-9 bit Jackson on his right leg, causing him to fall to the ground. While Jackson was still handcuffed with his hands behind his back and lying face down on the ground, K-9 bit Jackson’s right leg again and held the bite, causing Jackson to suffer excruciating pain and a chunk of flesh was taken out of his calf. He later received eleven stitches to his leg; the bites have left scarring and impaired Plaintiff’s ability to walk, run, and play with his young child. Jackson claimed that throughout this encounter, he did not resist, threaten or be uncooperative.

Handler and others filed a motion to dismiss. The appellate court held that, when accepting Jackson’s allegations as true and drawing all reasonable inferences in Jackson’s favor (as required for a motion such as this), Jackson had stated sufficient allegations for his Fourth Amendment claim against handler to survive the instant motion. Because handler directed K9 to bite Jackson when he was handcuffed and offering no resistance or threat, that handler subjected Jackson to a K-9 attack without justification, and that handler failed to secure the K9 for which he was responsible. From these allegations, it can reasonably be inferred that handler intentionally allowed the K9 to bite Jackson either by directing the K9 to do so, or by failing to restrain the K9 when it exhibited aggressive conduct towards Jackson. While it might ultimately be established that handler was acting reasonably to control a disruptive situation; that the K9’s bites were merely the instinctive acts of a trained K9; or that handler acted solely for personal reasons unrelated to the furtherance of his employer’s business, these conclusions are not evidenced by Jackson’s allegations. Accepting that the K9 twice bit Jackson, that Jackson offered no resistance or danger to the officers or others, that the second bite occurred while Jackson was face down on the ground while handcuffed behind his back, and that the bite to Jackson’s right leg was significant enough to require 11 stitches and has since caused Jackson difficulties in walking and running, Jackson alleged facts supporting a plausible Fourth Amendment claim against handler.

In addition, the court held that a reasonable officer would have known that deploying a police K9 to bite a handcuffed and subdued arrestee violated the Fourth Amendment. Accordingly, handler’s application for qualified immunity was denied without prejudice, but could be renewed at a later time.

Jackson also alleged a state assault claim. Under New York Law, a civil assault is an intentional placing of another person in fear of imminent harmful or offensive contact. To recover damages for assault, there must be proof of physical conduct placing the Jackson in imminent apprehension of harmful contact. Here, the allegations that handler subjected Jackson to a K9 attack and failed to restrain the K9 for which he was responsible are sufficient to support a plausible inference that handler intentionally placed Jackson in fear of imminent harmful or offensive contact from the dog before Jackson was actually bitten. Further, the allegations that Jackson was first bitten while he was walking to the patrol car, and then bitten a second time while he was on the ground, are sufficient to support a plausible inference that Jackson was placed in imminent apprehension of harmful contact from the K9 between the first and second bite. Thus, the civil assault claim against handler was allowed to proceed.

Jackson also alleged a state battery claim. A civil battery is an intentional wrongful physical contact with another person without consent and may be accomplished either personally or by means of an instrumentality such as a police dog. A number of courts, including this appellate court, have held that the Fourth Amendment excessive force standard applies to assault and battery claims against a police officer under New York law. Here, because Jackson has stated a plausible Fourth Amendment claim against handler based upon the use of excessive force, and because Jackson’s excessive force and battery claims are based upon the same factual circumstances, Jackson has stated a plausible civil battery claim against handler. Accordingly, the civil battery claim was allowed to proceed.

The court then addressed the liability of the county for the state claims. Jackson’s allegations indicate that handler was acting in furtherance of his employer’s law enforcement function when the circumstances arose that form the basis of the state law claims. There is no indication that handler acted solely for a personal reason or motive when his K9 bit Jackson. Thus, there is sufficient reason to allow the respondeat superior liability claim against the County of Ulster to proceed based on the assault and battery that Jackson contends he suffered.

Monell liability was denied.

Note: Many of these cases reviewed by this editor are at the summary judgement or dismissal stage. This requires the court to take as true what the complainant asserts, unless there was uncontroverted evidence to the contrary. Here, there wasn’t any body cam or other type of evidence that could have been produced to challenged Jackson’s version of the facts. The other take away from this case is that the handler is being accused of assault and battery in a civil context. This can result in further damages and if found true by the civil jury, a DA may be persuaded to filing charges as well. However, at this stage, the LE side of things has yet to be heard.

United States v. Orozco (North Carolina 2022) 2022 U.S. App. LEXIS 20390
Alert as Probable Cause; Currency Sniff

Orozco was paid to drive a car with over $100,000 in drug-tainted cash hidden in a secret dashboard compartment. When police pulled him over for lane violations, he acted suspiciously: He quickly shut down the GPS application running on his smartphone and struggled to answer where he was going. Based on their observations, LE called for a K9 team. Orozco also consented to a search of the vehicle. K9 alerted to the vehicle and inside the vehicle where drug residue and pry marks showed LE where the money was. At that point, Orozco volunteered that he had been paid to drive and the money was not his. His odd behavior continued when he arrived at the station: When police found five SD cards wrapped in a $100 bill in Orozco’s shoe, Orozco tried to destroy them by eating them. When police got a warrant to search the phone and SD cards, things went from bad to worse for Orozco—both the phone and the chips contained graphic and heinous child pornography. Later, in a “money line up,” a K9 confirmed the presence of drug residue on the money.

Orozco challenged the search warrants in this case and therefore, indirectly, the K9 sniffs and alerts. The court stated in its denial of the motion to suppress that “just as alcohol odor in a passenger cabin need not mean the driver was drinking, we are mindful that a drug dog’s alert on cash may not always mean it is drug money.” But when viewed together with all of the other factors, the totality of these circumstances is more than enough to establish a “fair probability” that Orozco was engaged in drug trafficking.

Note: This case was about way more than the K9 alerts. However, the alerts to the vehicle and the money were used as part of the probable cause and the court recognized that.

Cross v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 779
Traffic Stop; Alert as Probable Cause

Cross was reported by a CI to be trafficking in heroin. CI showed LE text messages and Facebook entries which confirmed a sale by Cross to CI. Cross rolled up to the correct spot and LE confirmed his identity. LE told CI to tell Cross to proceed to another motel. When he pulled up at the second location, Cross was stopped. (The court did not indicate why and Cross did not challenge the stop).

Next, K9 alerted LE to narcotics on the driver’s side of the car. Although Cross was not in the car at the time, and a subsequent search of the vehicle revealed nothing, handler testified that this type of reaction often occurs if there is a lingering odor in the vehicle from a narcotic that was there. So, it was likely that K9 was alerting because Cross had recently possessed the drugs when he was sitting in the car. Therefore, all the facts and circumstances in this case would warrant a reasonable person to believe that Cross came to the second motel to sell heroin to the informant, took the heroin with him when he exited the vehicle after the Terry stop, and likely still possessed the heroin at that time. (He had concealed it under his “nut sack” and then tried unsuccessfully to swallow it). The court therefore concluded that LE had enough information to warrant a reasonable person to believe that Cross possessed narcotic drugs and intended to sell them to the informant.

Note: Cross also complained that LE violated his 4th Amendment right to be free of unreasonable search and seizure when they pounced on him and prevented him from swallowing a golf ball sized baggie of heroin (he actually did ingest some of it and was on the nod as LE transported him to the hospital). The court was quickly dismissive of that argument, stating that Cross’ insistence that LE should have let him swallow it and then waited for the effects to pass was ridiculous given the danger that posed to Cross.

United States v. Randall (Wisconsin 2022) 2022 U.S. Dist. LEXIS 125971
Odor of Marijuana as Probable Cause

Randall was a self described activist regarding racism. He had two social media pages and had the privacy setting on private. However, he unwittingly friended an undercover LE. One of his activist activities is to film LE during traffic or Terry stops of black people. On one of these stops, Randall was not only filming but verbally sparring with LE during the stop. After some back and forth, Randall retreated to the curb as directed. The sergeant on scene smelled marijuana on him. However, he was allowed to leave the scene on foot and went home. LE soon after charged Randall at his home with obstruction and disorderly conduct and presented him with a summons. Randall was not arrested at that time. LE smelled the odor of marijuana coming from the house.

Randall posted the video of the above mentioned stop about 30 minutes after the summons was served. In it, Randall was standing inside his residence displaying a black handgun while exhorting his followers to fight back against the police. An additional video from a different date showed Randall and his step son at a range where Randall shot two handguns, one of which looked like the gun in the stop video. Randall was a convicted felon who could not possess guns. A search warrant was issued for Randall’s residence on this and the above information, including the odor of marijuana. During the search, LE found one firearm.

Randall filed a motion to suppress, calling the fake Facebook accounts created by LE an invasion of privacy in violation of the Fourth Amendment.

The appellate court put that issue on hold and addressed the odor of marijuana both on Randall’s person and coming from his house. The court held that these facts alone gave LE the probable cause necessary to issue the search warrant.

“But let’s start with a point that neither Randall nor the government has addressed: the police had probable cause to support their warrant request based solely on the aroma of marijuana emanating from Randall personally and from his residence on February 20, 2021. In his warrant application, Officer Hollingshead reported that JPD Sergeant Severson stood next to Randall during the third-party traffic stop and reported that Randall “smelled of marijuana.” LE visited Randall at his home that same evening, and “all could smell the distinct odor of marijuana coming from the interior of the residence.”

The court went on to say that the firearm would have been found via the plain view and inevitable discovery doctrines, so even if the search warrant was redacted to eliminate all information from social media, the search warrant would still be valid based on the probable cause created by the odor of marijuana.

Note: In the Seventh Circuit, it is still the law that the smell of burnt marijuana, by itself, provides probable cause to search. (Citations omitted). Maybe this is going to change in light of the legalization of certain hemp and CBD products in Wisconsin, but it hasn’t changed yet. (Citation omitted). The search warrant issued by the state court specifically found probable cause that Randall’s residence contained marijuana and other evidence related to  drug trafficking.”

Wisconsin has only legalized certain hemp and CBD products of marijuana. Otherwise, it is illegal to possess. The court went on to address the “privacy” violation, but I have not addressed it here because it was not relevant to the scope of this update.

State v. McMillia (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 1307
Odor of Marijuana as Probable Cause

McMillian stopped for lane violations. LE requested the appropriate documents and noted shake scattered throughout the back seat and rolling papers under the driver’s seat. There was also an odor of raw marijuana from the car.

McMillian was removed and Terry frisked. He had rolling papers on him. He claimed he smoked marijuana earlier at a friend’s house. Based on the above, LE searched the vehicle’s front passenger area and the driver’s side of the back. The passenger side of the back was not searched (unknown why). When the arm rest was pulled down in the back seat, LE the odor of marijuana became very strong. LE obtained the keys to the car from McMillian and opened the trunk and searched, finding marijuana, cocaine and heroin in large quantities. There was also drug paraphernalia and a loaded gun. LE testified in the trial court that different circumstances could affect the odor of marijuana, whether it was strong or weak. He also stated that the shake in the back seat and the marijuana in the arm rest was not enough to produce the strong odor he smelled.

The appellate court initially held that after viewing marijuana shake in the car, and smelling raw marijuana, LE had probable cause to search the interior of the vehicle. Which they did. However, a review of the body camera footage reveals LE did not complete that search prior to undertaking the warrantless search of the trunk. LE never searched the back seat on the passenger side of the car. Therefore, the court held, LE did not eliminate the possibility that the odor was coming from the passenger compartment by searching the entirety of the car prior to searching the trunk. Moreover, the trial judge mistakenly found that because LE testified that the small amount of marijuana in the back arm rest “could not be the source of the smell,” it was reasonable for LE to continue his search into the trunk. But LE never said he could not identify the source of the smell. He never stated the odor was not emanating from the shake found in the car. And LE did not complete the interior search of the back seat. Therefore, LE did not have a reasonable and articulable suspicion that a crime was being committed to satisfy a finding of probable cause to extend the search to the trunk. The trial judge misstated the testimony of LE and therefore mistakenly granted the motion to suppress.

Note: Not sure what to say here. The general rule with odor in states that have not legalized marijuana is that the odor of marijuana (or any probable cause) allows for the search of the entire vehicle including the trunk. This type of hair splitting (they didn’t search one quarter of the interior so they don’t get to search the trunk) is bizarre. This case is unpublished so one would have to assume that the court did not want this ruling to go any further than this case. New Jersey legalized recreational marijuana in 2021, after the actions in this case.

United States v. Mayo (Georgia 2022) 2022 U.S. Dist. LEXIS 128099
Odor of Marijuana as Probable Cause; Foundation of Reliability; Inevitable Discovery Rule; Good Faith Exception

LE saw Mayo and knew there was a warrant for his arrest. LE approached him in his car and he got out under his own volition. LE asked for ID, Mayo said he didn’t have any, but confirmed his identity verbally. As LE engaged with Mayo, one indicated that he could smell the odor of marijuana coming from the vehicle and on Mayo’s person. The other testified that smelled the odor of marijuana coming from Mayo when he approached. LE confirmed that when Mayo approached, he can be heard on the body-worn camera footage saying, “I smell some weed.” LE further explained that after it was confirmed with GCIC that Mayo did indeed have an outstanding warrant for child neglect, they arrested Mayo, and began a search of the vehicle. Meth, MDMA, marijuana, powder and crack cocaine and hydrocodone were found.

The appellate court stated that it is well settled law that the odor of marijuana gives LE the requisite probable cause to search and found that the smell of marijuana emanating from the vehicle gave the officers probable cause to search the vehicle. The evidence and testimony show that two officers smelled marijuana coming from the vehicle and that one smelled marijuana on Mayo’s person. Mayo did not present any evidence to counter the officer’s observations. Defendant has likewise failed to present any evidence that calls into question LE’s ability to identify the smell of marijuana. Because LE were able to smell the odor or marijuana coming from the vehicle, their search of it was supported by probable cause.

The Government also argued that even if LE did not obtain probable cause to search Mayo’s vehicle based on “plain smell,” the evidence seized would have been discovered through a routine inventory search following Mayo’s arrest pursuant to the outstanding child neglect warrant. Based on the record evidence, the Court agreed. (Second avenue of admissibility – always helpful).

Under the exception for “inevitable discovery,” the government may introduce evidence that was obtained by an illegal search if the government can establish a “reasonable probability that the evidence in question would have been discovered by lawful means.” The government must also establish that “the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.” The Government must prove to the Court that the evidence would have been lawfully recovered through a preponderance of the evidence.

Here, the Government contended that the vehicle Mayo was operating would have been subject to an inventory search after his arrest on the warrant for child neglect. LE had been searching for the vehicle prior to the encounter with Mayo on January 4, 2021 because it was witnessed at a residence linked to a drug investigation of the DEA. Therefore, it is clear that law enforcement was pursuing a lawful avenue of discovery when the encounter and eventual search occurred. LE testified that, in Tift County, Georgia, the procedure for towing or impounding vehicles by law enforcement includes a mandatory search prior to the vehicle’s removal. To safely impound the vehicle, LE would have had to search the vehicle prior to its tow. LE was aware that Mayo had a warrant due to a previous search in the process of his ongoing investigatory work. The warrant was confirmed on the scene prior to the search by GCIC. Thus, the vehicle would have been subject to a routine inventory search prior to its impounding by the Tift County Sheriff’s Office upon confirmation of the outstanding warrant. Accordingly, the Court finds that any contraband would have been inevitably discovered regardless of the search conducted by law enforcement during their encounter with Mayo on January 4, 2021 based on the smell of marijuana emanating from the truck.

In any event, the court went on to hold that the good faith exception would have also applied. (Third theory of admissibility – yes!). Here, the court said, LE had reason to believe that Mayo had an active warrant for his arrest. The investigators had previous knowledge of Mayo and had information that he may have been involved in drug related activity that was subject to an investigation. When LE approached, Mayo voluntarily exited the vehicle he was operating and approached. As he approached, LE indicated verbally that he smelled the odor of marijuana. Another officer indicated that he smelled the odor of marijuana emanating from the vehicle’s open door. Because of the odor of marijuana, a search of the vehicle was conducted, yielding illegal contraband that was seized by LE. Thus, under the totality of the circumstances, the Court found that even if one or more of LE’s actions here was a Fourth Amendment violation, LE acted reasonably and therefore, in any event, the exclusionary rule does not apply under these circumstances. The Constitution protects only against “unreasonable searches and seizures,” and the officers did not act unreasonably here. For these reasons, suppressing evidence in this case would not deter any known unconstitutional conduct, and any deterrent effect is greatly outweighed by the significant social costs that would be imposed by suppression. The motion to suppress was denied.

Note: This is a federal case, so marijuana is still illegal. Note that the government presented a “kitchen sink” and presented 3 theories of admissibility. That is good practice in all cases. Also please note, that the training and experience of the LE in this case was established so that the officers could opine as to what they smelled was marijuana. In this type of situation, be prepared to testify about why you can identify the odor of marijuana and if your training and experience allows you to state an opinion, whether it is burnt, raw, strong, weak, etc.

Jarvela v. Washtenaw Cnty. (Michigan 2022) 2022 U.S. App. LEXIS 20286
Excessive Force; Deployment Warnings; Qualified Immunity

A drunk Jarvela drove to the store for cigarettes at a late hour of the night and the clerk called LE to report a drunk who just left in a black Silverado. LE arrived and gave chase. Ultimately, Jarvela crashed and bailed on foot into a darkened area of trees and brush. LE called for back up instead of chasing Jarvela into a dark and unvisualized area. K9 team arrived in 13 minutes and deployed K9 on a choked up 15 foot lead (handler was 5 to 10 feet from K9) to find Jarvela. K9 found a shoe and a t-shirt. The grass started moving and K9, out of sight of the handler, bit Jarvela on the arm. Handler immediately approached, telling the K9 to hold. Jarvela started to roll his body on top of the 65 pound K9 (Jarvela was over 200 pounds). Handler was shouting directives to Jarvela but ultimately, Jarvela was on his knees with his chest against the K9 and his arms bent near K9’s head. Handler, concerned for the safety of his K9, hit Jarvela on his back, telling him to let go of the dog. Handler then tasered Jarvela twice, who gave up at that point. No indication that the K9 was injured.

The court indicated that the issue here was whether handler was entitled to qualified immunity. For purposes of that determination, the court divided handler’s encounter with Jarvela into two phases: a tracking phase, which ended when K9 found Jarvela and first seized him by means of a bite; and a contact phase, which ended when Jarvela was handcuffed.

In the tracking phase, the court held that this was a situation fraught with danger. Jarvela was driving drunk, did not respond to LE, crashed, ran into a darkened area with trees and brush which provided Jarvela a strategic advantage. Therefore, the court held that Jarvela posed a significant threat to LE. The court then addressed whether the lack of warning was unconstitutional. The court found no reason to think that the warn-then-unleash approach was on balance less forceful than the approach handler employed here—which was to omit the warning and to keep K9 on a fairly tight leash. “There is a vast difference” between those two approaches; each has its pros and cons, depending on the circumstances. And the warn-then-unleash approach can elevate risk for officer and suspect alike: for the officer, because the shouted warning reveals the officer’s location; and for the suspect, because the K9 will be beyond the handler’s control when the K9 finds the target. Both approaches, however, fall within accepted police practice; and the court would seriously overstep its judicial role if the court were to hold that officers in every instance must adopt one approach or the other.

The court then addressed the contact phase. That phase was notable above all for its confusion, as Jarvela wrestled with K9 as the K9 bit his arm, and handler shouted commands with which Jarvela did not promptly comply. Here, handler ceased to use any force once Jarvela complied with handler’s commands to roll onto his stomach. And Jarvela has not identified any binding precedent that would have made clear to handler that any of the force he used before then was unnecessary to ensure Jarvela’s submission. Handler is therefore entitled to judgment on all of Jarvela’s claims against him.

Note: In this jurisdiction, there was a case that was very similar to this one so the court had a fairly easy time considering whether there was a 4th Amendment violation (there wasn’t) and whether handler had appropriate notice of that 4th Amendment violation (he didn’t because there wasn’t one). Kind of a sloppy opinion, but it gets to the appropriate result.

United States v. Thomas (Minnesota 2022) 2022 U.S. Dist. LEXIS 130738
Odor of Marijuana as Probable Cause; Prolonged Detention; Automobile Exception

LE had noticed a car with the wrong license plate in Thomas’ driveway. LE later tried to locate that car to determine if it was stolen. Thomas’ residence was known for criminal calls for service, including stolen vehicles. LE had interacted with Thomas many times in the recent past and could recognize him on sight. LE also knew his license was suspended. When LE arrived at Thomas’ residence to look for the vehicle, another vehicle left the property so LE followed it. LE ran the plate of this vehicle. He was able to confidently ID the driver as Thomas.

LE initiated a traffic stop for the suspended license as Thomas drove back up his driveway and parked near the vehicle with the wrong plate. LE told Thomas to stay in the vehicle for officer safety. Thomas refused and started to complain of harassment. LE told him he knew he was suspended. LE asked for the appropriate paperwork for the vehicle and Thomas supplied them. Thomas said he just bought the vehicle yesterday, but none of the paperwork was filled out properly. LE believed that Thomas purposefully did not fill out the paperwork so the vehicle would stay in the seller’s name while Thomas had control of the vehicle. Thomas’ behavior was increasingly erratic which was different from the previous encounters where Thomas was cordial, respectful and cooperative. LE observed a knife on Thomas’ belt. Thomas allowed LE to remove it.

LE smelled the odor of marijuana during the course of the investigation. LE had been specially trained in the odor and could tell the difference between burnt and raw. LE testified that the odor became apparent over the duration of the traffic stop, while talking to Thomas and when he opened the door of the vehicle to get the VIN. The odor was coming from Thomas and the vehicle. LE asked about marijuana and Thomas showed him a baggie of marijuana a few steps in front of the vehicle. Thomas denied possession. The baggie did not have any indication that it had been there very long, resulting in the opinion that it came from Thomas who placed it there when LE’s attention was elsewhere. A Terry frisk of Thomas was clean.

LE went back to Thomas and engaged him in discussion about the title and ownership. Thomas continued to assert that he was being harassed. Back up arrived and based on the odor of marijuana coming from the vehicle, LE conducted a search of the vehicle. He opened the center console and located a holster for a handgun. Between the driver’s seat and the center console area, he located a handgun. He testified that he found the handgun within the first 30 seconds or minute of searching the vehicle. Prior to taking the firearm out of the vehicle, LE arrested Thomas and handcuffed him, since Thomas was a felon and not allowed to possess guns. The gun was stolen.

LE continued the search of the passenger area of the vehicle and found marijuana in a baggie, a handgun magazine and methamphetamine. When informed, Thomas appeared to have a seizure so medical was called.

The appellate court first addressed the constitutionality of the stop/contact. Thomas first argued that the roads he was on were not public roads so he could not be legally stopped/contacted. The appellate court said no; even if he was on private roads, it was a reasonable mistake on LE’s part (but here, he wasn’t on private land). Thomas also complained that LE couldn’t tell it was him driving. The court, after reviewing body/dash cam credited LE’s testimony because he could see Thomas partially and he knew Thomas from previous contacts and knew this residence was Thomas’. Therefore, the stop/contact was valid because of Thomas’ license suspension.

Thomas then complains that the stop was unduly prolonged because LE didn’t write the ticket in a minute and a half. The court held that the approximately 7 minute stop/contact was reasonable because Thomas himself delayed LE’s ability to write a ticket because he was 1) sniveling about being harassed; 2) answering his own phone 3) not being able to produce proper paperwork for the ownership of the vehicle; 4) having a knife which needed to be removed; etc.

The court also held that if there was a prolonged detention, LE had reasonable suspicion that other criminal activity was afoot. LE was trained in the odor of marijuana and he smelled that odor during the traffic investigation coming from Thomas and the vehicle. Thomas was a bit squirrely and shifty, making LE believe he was trying to hide something because in previous encounters, Thomas acted much differently. The Court concluded that, under the totality of the circumstances and based on his training and experience, LE had reasonable suspicion to believe Thomas was involved in criminal activity no later than the point at which he was completing the routine checks of Thomas and his vehicle’s information in connection with the traffic stop. LE was therefore justified in extending the duration of the traffic stop to investigate his suspicions. The court also held that, based on what evidence LE had at hand, there was a reasonable probability that marijuana was located inside the vehicle, and LE thus had probable cause to search the entire vehicle for drugs under the automobile exception.

Note: One takeaway here is to remember that if you contact someone and detain them, whether it be via a traffic stop or a contact like this one, you still have to have a reasonable suspicion for detention (ex. = suspended license). As to the prolongation argument, the court incorrectly held that the 7 minute duration was reasonable, which is not the standard Rodriguez test (although it also said LE was engaged in the processing and investigation of the traffic/status violations). It came to the right conclusions though; the detention was legal because it was not prolonged and because there was additional reasonable suspicion that Thomas was involved in drug trafficking.

Harvey v. Butcher (Utah 2022) 2022 U.S. App. LEXIS 19420 (Unpub.)
Successive Traffic Stops; Qualified Immunity

Harvey was driving his car through Utah on his way to Wyoming. He was stopped for excessive tint. He also had Arizona plates. LE told Harvey that his car window tint was too dark and was probably too dark for Arizona as well. Harvey said he was living in Minnesota. The tint meter indicated a violation of Utah law. When asked, Harvey refused to say anything other than he was on a trip.

Harvey’s registration was in Illinois so LE tried to speak to Harvey to clear up residency. There is not a record of this conversation, but apparently Harvey told LE that he had another car in Utah. LE gave him a warning and sent him on his way.

LE then contacted a fellow LE whom LE knew was a handler and told him he had a car for him to stop. LE told handler that driver was evasive about his travels, that the car was leased but driver was from Minnesota. LE said the window tint was a violation of Utah, Arizona and Minnesota law and he had been stopped before in Utah for this violation.

When  Harvey drove past handler, handler stopped the car because of the tint. Handler had the same luck regarding Harvey’s travels. Harvey presented his license and registration; handler returned to his vehicle and contacted dispatch with the information. While waiting for the return, handler had K9 sniff the exterior of the car and K9 alerted. Although the car was searched, there were no narcotics found.

Harvey then filed a federal lawsuit for violating the 4th, 8th and 14th Amendments. (The 8th Amendment claim was because LE “made” him wait outside in the cold while his car was searched. which is silly).

The appellate court punted and sent the 4th Amendment issue back to the trial court. They indicated that “Although [“]successive investigatory stops are not per se prohibited,” they are “inherently more intrusive and coercive than the first.” In US v. Peter (10th Cir.) 10 F.3d 1517, the court held that an officer who has conducted a traffic stop and whose “reasonable suspicion [of criminal activity] has been dispelled or probable cause has not developed . . . may not release the suspect[,] . . . wait until he has travelled down the road a few miles, and then make a second [traffic] stop based solely on the conduct that has already proved to be illusory” or “call[] upon a different officer to make the second intrusion in his stead.”

Note: This was a successive stop for the same reason, which appears to be prohibited in the 10th Circuit by Peters. However, there is no authority that prohibits another stop for different law violations. So in this case, instead of stopping Harvey both times for tint, the handler could have followed until he saw a traffic violation, for example. This is an unsettled issue right now. Tread carefully.

People v. Lopez (Colorado 2022) 2022 COA 70M
Traffic Stop; Alert as Probable Cause; Marijuana Law

LE pulled Lopez over for no registration and failing to signal a turn. Lopez was very nervous. In addition, Lopez had difficulty in opening his window. He told LE that he was recently released from prison and was out on bond in a narcotics case and he claimed to be in the area working construction, but he was wearing clean clothes, which included an ironed shirt and designer shoes. A K9 team (one which was trained on marijuana) was called in and the K9 alerted on the car. A search revealed narcotics, a loaded gun and a bag of tools.

At the time of the LE conduct in this case, the Colorado Supreme Court had not yet held that marijuana was lawful in certain circumstances. However, in McKnight I and II, the court came to the conclusion that because a marijuana trained K9 could detect lawfully possessed marijuana, the sniff by a K9 was actually a search. Because of this conclusion (that is, the possibility of lawful possession), K9 sniffs now require probable cause to be formed prior to the deployment.

Note: Because the trial court held that LE had only reasonable suspicion prior to the sniff, the government in the appeal were basically bound by that finding. So they could not argue that there indeed was probable cause for the sniff.

I am still baffled by the Colorado Supreme Court’s position that if a K9 is trained on a potentially legal substance, that this somehow has now been applied to all sniffs (note in this case that there was not even a mention of marijuana nor any found). Obviously, new K9s will not be trained on marijuana with this kind of lunacy coming from the Supreme Court of the state. But watch out for defense attorneys arguing that in Colorado, a K9 sniff is a search and requires probable cause before deployment in all cases. Hopefully, since the connection to this line of argument was solely that this K9 was trained on marijuana, the new K9 teams are not going to have to deal with this. Time will tell. This line of cases is unsupported by logic and common

State v. Sunkle (Ohio 2022) 2022-Ohio-2442
Traffic Stop; Alert as Probable Cause; Prolonged Detention

Handler and LE were working drug interdiction at a local motel where Sunkle was staying. LE had information that Sunkle was trafficking drugs. She left the motel with a male in an SUV. Handler followed the SUV until handler noted lane violations. Handler called LE and asked to have the SUV stopped. Sunkle was the driver and provided her license (which turned out to be suspended). The passenger refused to identify himself. Passenger was overly nervous, clutching his back pack and shaking. Passenger was taken out of the car and put into a cruiser. Sunkle was asked to move her vehicle further off the road. She was also overly nervous and since the passenger still refused to ID himself, another LE was called to the scene as they believed he might be able to ID the passenger. At that point, handler had his K9 sniff the free air outside the SUV. K9 alerted to the car and handler requested and received permission from Sunkle to search the vehicle. Sunkle also confessed she had a bunch of drugs in her motel room. A roll over search warrant found the same.

Sunkle complained that the traffic stop investigation was halted to perform the K9 sniff of the vehicle which therefore extended impermissibly the traffic stop. The court stated that LE testified that a traffic stop can be completed in twenty-five minutes, if there are no interruptions. While the reluctance of the passenger to provide his identification might have been considered an interruption in the orderly completion of the traffic stop, the court did not consider that issue because the time between the stop and the K9 alert was brief. The record shows that the K9 sniff occurred within approximately seven minutes of the initial stop, so the seizure was not prolonged beyond the time reasonably required to complete the mission of issuing a traffic citation. And once the K9 alerted to the presence of narcotics in the vehicle, the officers had probable cause to search the vehicle. And, after the K9 alert, Sunkle consented to the search of the vehicle and has conceded that she “advised police that she had multiple amounts of varying drugs in her hotel room that she picked for purposes of selling.” The court held there was no prolonged detention.

Note: This court talks about 7 minutes being a brief time and therefore not a prolonged detention. Keep in mind the federal standard is that the sniff cannot prolong a stop at all. Here, though, I think the court would have found that LE and handler already had reasonable suspicion of drug trafficking which would have allowed for detention anyway. The secondary way this was valid is that the sniff and alert happened while the traffic stop was still in process.

State v. Cameron (North Carolina 2022) 2022-NCCOA-475 (Unpub.)
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause;

LE was patrolling an area that was known for drug activity. There was a BMW backed in at gas station. LE watched as a Lexus pulled up, Cameron get out and get into the BMW for 30 seconds then get back into the Lexus. Cameron had his head on a “swivel” and LE believed there was something in his hands as he got out of the BMW. Both vehicles left the gas station without getting gas and drove in opposite directions. LE followed Cameron and pulled him over when he exceeded the speed limit.

Cameron was a passenger in the vehicle. LE observed that the driver, later identified as Chavis, was agitated and upset over the traffic stop. LE also noted that Cameron was leaning over so that LE could not see both hands. Occupants were removed from the vehicle. LE called for a K9 team to respond. During a pat down of Cameron, LE found about $3k in his pocket. When asked, Cameron said he had been in federal prison for trafficking cocaine. The K9 team arrived, performed a sniff and the K9 alerted to the vehicle on the passenger side. LE looked under the passenger seat and found 2 $100 bills. LE went back to Cameron and pulled his pants and underwear away from his body (not down) and saw a large baggie containing heroin in his buttocks.

Cameron filed a motion to suppress. He first challenged the reasonable suspicion to stop the vehicle in the first place. LE testified to the speeding and the court found that to be sufficient to justify the traffic stop.

Cameron then complained about the “body” search, claiming that LE didn’t have probable cause to search his person. The court stated that LE observed traffic infractions, initiated the traffic stop, approached the vehicle, and observed Cameron “lean forward in his seat in an unusual manner, pressing his right arm between his chest and right thigh and reaching his left arm down toward the floorboard.” A subsequent pat-down of Cameron’s person revealed a large wad of cash in his pocket. Cameron told the officers he had served ten years in a federal prison for a previous drug trafficking conviction. The K9 alerted to the presence of narcotics at the area of the vehicle where Cameron had been sitting. A search of the passenger side of the vehicle revealed cash underneath the front seat. LE then performed a search on Cameron’s person and first found cash in his pocket, and then, after pulling the top of his underwear away from his back side, observed a bag of heroin protruding from between Cameron’s buttocks.

Thus, the court held, considering LE’s observation of Cameron engaging in what appeared, in his professional training and experience, to be a drug deal, the location where the drug deal occurred, the presence of large amounts of cash on Cameron’s person and at the passenger side of the vehicle, his criminal history, and the K9 alert to the presence of drugs at the passenger seat where Cameron had been sitting, a reasonable person acting in good would have believed that a search of Cameron’s person would reveal the controlled substances sought which would aid in his conviction. Therefore, based upon the totality of the circumstances, the officers had probable cause to search Cameron’s person.

Note: The facts are pretty straightforward and LE handled the case well. I do want to point out two issues. 1) The court states that the K9 alerted to the passenger door and since that was where Cameron was seated, Cameron’s body was searchable. This can be a slippery slope argument where a court could say in a case where the K9 alerted on the driver’s door, only the driver’s side can be searched. Remember that an alert allows you into all of the vehicle and containers within. However, since that alert on the seat was used to justify the “body” search, it’s fine here. Language discipline is important in court, so practice it as much as you can.

State v. Howard (North Carolina 2022) 2022-NCCOA-476 (Unpub.)
Traffic Stop; Probable Cause;

Howard was stopped by LE because the registered owner of the vehicle did not have a valid driver’s license. LE immediately smelled marijuana as he approached. Howard presented his driver’s license. LE noted a half-empty bottle of liquor. LE  found out that Howard’s DL was not valid. LE then called for back up. Back up arrived shortly and LE asked Howard how much marijuana was in the vehicle. Howard answered none, but when Howard got out of the car at LE direction, LE noted plastic baggie of marijuana in the driver’s door pocket. He was asked again about marijuana and he said yes. LE searched the vehicle and found THC cartridges over the legal limit and a digital scale.

Howard claimed that the search of the vehicle was unsupported by probable cause because the scent or appearance of marijuana and industrial hemp are indistinguishable. Prior to legalization of hemp, the law in this jurisdiction was firmly established that the smell or sight of marijuana was sufficient to create probable cause. Howard claimed that the legalization of industrial hemp requires a change in how marijuana cases are investigated and prosecuted in this state, since hemp and marijuana smell the same.

The appellate court punted and stated “we need not determine whether the scent or visual identification of marijuana alone remains sufficient to grant an officer probable cause to search a vehicle.” LE possessed more than just the scent of marijuana to indicate Howard may have illegal substances within the vehicle. LE testified he noticed the odor of marijuana as he approached Howard’s vehicle. While at Howard’s vehicle, LE noticed a half empty liquor bottle on the passenger floorboard. Although Howard initially denied possessing any “weed” or marijuana in the vehicle; after he was ordered to exit the vehicle, he subsequently admitted he had “weed” inside the vehicle. Moreover, when Howard exited his vehicle, LE testified he immediately saw a plastic baggy filled with what he concluded to be marijuana. These observations by LE sufficiently created probable cause to conduct a warrantless search of the vehicle.

Howard then asserted that because the smell of industrial hemp is the same as marijuana, LE impermissibly extended the stop based on the smell of marijuana. The court stated LE had three pieces of evidence from which to develop reasonable suspicion to prolong the traffic stop: 1) the odor of what he believed to be marijuana emanating from Howard’s vehicle, 2) the plastic bag of marijuana he observed as Howard exited the vehicle; and 3) Howard’s own admission he possessed “weed” inside the vehicle. Under a totality of the circumstances, LE had reasonable suspicion another crime of possession of illegal substances was afoot under which to extend Defendant’s traffic stop.

Note: I don’t know if the smell of hemp is the same as marijuana. This may be an issue going forward. Stay tuned.

State v. Simmons (Louisiana 2022) 2022 La. App. LEXIS 1084
Traffic Stop; Odor of Marijuana as Probable Cause

The court held in this case that LE’s initial traffic stop of Simmons’ vehicle was lawful because LE’s radar reflected Simmons was traveling 93 mph in a 60 mph speed zone, the video footage reflected LE informing Simmons of the reason for the stop, and Simmons appeared to acknowledge he had been speeding; and LE had probable cause to search the vehicle because Simmons’ behavior was abnormal and nervous when he was questioned by LE, LE felt it necessary to detain the other occupants for her safety while she continued her investigation, and LE smelled fresh marijuana when helping an occupant in exiting the vehicle.

Note: Nothing really new here. Louisiana just legalized small amounts of marijuana but I don’t believe that there is new case law yet in Louisiana based on that.

People v. Ayon (California 2022) 2022 Cal. App. LEXIS 591
Traffic Stop; Prolonged Detention

Ayon was stopped by LE after he committed two minor traffic violations. Ayon was detained until a K9 team was able to sniff the car. The K9 alert resulted in a search which revealed cocaine, methamphetamine, a scale and currency.

Ayon moved to suppress, claiming that LE impermissibly extended the traffic stop.

When LE stopped Ayon, his documents were obtained and called into dispatch. LE then ordered Ayon out and started questioning him, and asked for consent to search. Ayon refused. A K9 then sniffed the car and alerted.

During the motion to suppress, the defense introduced the body cam videos of two officers on scene. The videos indicated that at about 3 1/2 minutes into the stop, LE asked Ayon to exit. Just after that, dispatch said something and the only understandable word was “valid.” There was discussion about the violations LE observed for about a minute and then LE asked for consent to search. There was a short discussion about that and LE accused Ayon of getting hostile and confrontational. Another request for consent was made and declined. At that point, LE handcuffed Ayon because of his behavior. This was about 6 minutes in. About 8 minutes in, LE asked his back up if a “narco” dog had been requested. LE made a request for a K9 team, but it is unclear from the opinion when that request was actually made. LE then started performing FSTs which were completed about 10 minutes in. At 12 minutes in, the K9 team arrived and LE told handler to just run the dog by the car real quick. For the next two minutes there was no interaction between LE and Ayon. At 19 minutes or so, the handler reported to LE that the K9 alerted on the vehicle. As LE was searching his car, Ayon questioned LE about the traffic infractions. LE responded, “I generally don’t make traffic stops to give tickets. I don’t. That’s not my intent. That’s not why I’m making the stop. My intent is to make traffic stops, is to, and then in turn prevent crime from happening. Which is, i.e., guns, gangs, narcotics. I mean, warrants, parolee, probation, making sure they‘re doing all their things right.” Another officer on scene described DUI symptoms as well as great nervousness. However, this officer also conceded that he did not do anything to further the traffic ticket investigation.

In their analysis of the case, the appellate court first held that the start of the traffic stop was when LE pulled up behind Ayon and turned on his body camera (the court stated that Ayon was already stopped and therefore the stop actually started earlier, but for purposes of this opinion, the court used the moment the body camera went on). The permitted activities of running documents, confirming identity and determining criminal history and existence of any wants or warrants took approximately 5 minutes. But LE did not even begin writing a traffic citation. Instead, they stood around until the K9 team showed up and at 18-19 minutes in, the K9 alerted to the vehicle.

Based on these events, the appellate court held LE failed to diligently address the traffic infractions during the stop. They initially conducted the stop in standard fashion by taking Ayon’s documents and requesting a records check over the police radio, but that portion of the investigation was completed within the first three and a half minutes of the stop. LE spent about a minute talking with Ayon about the traffic infractions, and after explaining the reason for the stop, LE requested consent to search the car. By his own admission, Officer Williams never did anything after that point in time to investigate the traffic infractions. While the government claimed Ayon prolonged the stop with his argumentativeness, the court found that everything Ayon did was within his rights (although he verbally interrupted Officer Williams, he made no hostile, aggressive, or threatening movements). The government also argued that LE was investigating a potential DUI, but the court held the evidence did not support that argument. In addition, LE spoke at Ayon for several minutes about his own experiences as a youth with police, but this did not further the traffic investigation either. Finally, the court held that the K9 team’s arrival, discussion with on scene officers also contributed to the unconstitutional delay.

The government moved on to an argument that the preexisting drug investigation provided probable cause at the outset of the stop. LE even admitted on video that he never intended to issue a traffic ticket and that was not the motivation for the stop. At the motion to suppress, when asked about this investigation, LE invoked their governmental privilege under Evid. Code 1040 and 1042 which implied LE had some evidence (from a protected source) that they would find drugs in Ayon’s car. In addition, the handler was told to stand by to provide K9 sniff even before the actual stop. This all indicated that the stop was solely about LE expectations that Ayon was involved in drug dealing, but the evidence presented was not enough to find that there was a preexisting investigation which supplied enough evidence for a probable cause search. And as the videos contradicted LE testimony, specifically in Ayon’s claimed behavior and what was depicted on the body cam, the appellate court was concerned that LE was less than candid in their testimony. Therefore the motion to suppress was granted.

Note: Oh, boy. Where to start. If this was indeed a preexisting drug investigation, LE should have had enough time to come up with a plan that could have resulted in a valid vehicle search. While the court recognized that LE’s subjective intent was not relevant legally, the officer said the quiet part out loud on video; ““I generally don’t make traffic stops to give tickets. I don’t. That’s not my intent. That’s not why I’m making the stop. My intent is to make traffic stops, is to, and then in turn prevent crime from happening. Which is, i.e., guns, gangs, narcotics. I mean, warrants, parolee, probation, making sure they‘re doing all their things right.” While that was an honest response to a legitimate question by Ayon, it basically sunk LE’s ship. In addition, they could have been proceeding with the traffic investigation and talked to Ayon solely about the traffic investigation while they waited for the K9 team. Finally, although the request was made to have K9 respond prior to the traffic stop, it does not appear that the actual call for the K9 team to respond didn’t happen until 8 minutes into the stop. It seems from the opinion that there was an assumption made about the K9 team arriving (perhaps LE thought K9 team was rolling while K9 team was actually standing by waiting for a summons) and the call went out after it was realized that the call was needed. It took another few minutes for the K9 team to arrive and then about 5 minutes to talk to LE and conduct the sniff. This indicates, at least to me, that communication could have been much better to the K9 team. Best practice is to have a solid plan with good communication and not to say the quiet part out loud.

State v. Jensen (Wisconsin 2022) 2022 Wisc. App. LEXIS 581 (Unpub.)
Traffic Stop; Prolonged Detention; Alert as Probable Cause

Jensen was stopped because her exhaust was too loud and she appeared to be texting while she was driving. LE asked for the appropriate documentation and Jensen said she would need to find her insurance information on her phone. At that point, LE decided to issue a written warning to have her exhaust fixed within 10 days. Issuing a written warning required LE to return to his squad car, open his TRAKS computer system, enter basic information about Jensen, her vehicle, and the relevant statute into the program, and then print a warning. LE estimated the process to generate a written warning would take about two minutes on average, depending upon whether the form auto-populated or LE was required to manually enter all of the necessary information.

While LE was involved in this process, a K9 team arrived on scene without being summoned (handler saw LE pulled over with his take down lights on and decided to back him). There was a brief conversation about the stop and routine safety issues. It was a short conversation, according to LE, because he did not like handler. While LE was still in his patrol car “doing stuff on his computer,” handler contacted Jensen, believed that she was overly nervous and had her step out of the car. Handler Terry frisked her and then got his K9 and conducted a sniff of the vehicle and the K9 alerted. From the time handler came on scene to the alert was about 5 minutes.

The appellate court held that LE had already been working on the written warning in his squad car for four minutes before handler arrived at the scene. The amount of time LE had been working on the written warning before handler arrived would support a reasonable inference that the citation form did not auto-populate and that LE was required to manually enter all of the necessary information. Having to manually enter all of the information would, in turn, lead to a further reasonable inference that generating the written warning in this case would have taken longer than the “average” time to do so. In addition, LE expressly testified that he was “doing stuff on the computer” while handler was speaking to Jensen and conducting the K9 sniff. The trial court implicitly determined that LE testimony was credible when the court made reference to it and commented that there was no indication that LE just sat in the squad car and did nothing but watch the dog sniff rather than work on the written warning.

Therefore, the appellate court accepted the factual findings of the trial court and denied the motion to suppress.

Note: Nothing really new here. It is interesting, though, contrasting this case with other cases where the K9 was staged. Here, the handler apparently decided to see if he had an opportunity to run his K9. The terse exchange between LE and handler was short because LE didn’t like handler. No indication if handler knew that or not, but since everyone played within the rules, a good result was had. The only other issue is that the appellate court had to make some assumptions which should have been answered in testimony; for example, LE testified that a ticket could take up to a range of time depending on whether there was auto-population of the form. The appellate court assumed that was true but that question could have been asked which would have made things easier.

United States v. Pollard (Ohio 2022) 2022 U.S. Dist. LEXIS 116492
Traffic Stop; Alert as Probable Cause; Prolonged Detention; Reliability Foundation

LE had information that Pollard was driving “with a cocaine load and possibly staying at a hotel in the greater Cincinnati area.” LE surveillance showed Pollard coming out of his room at the hotel, put a shoebox into the trunk and drive off. LE followed, at the direction of his superiors, to wait until Pollard committed a traffic infraction and then pull him over. The stop ultimately was for speeding and a lane violation. As the vehicles stopped, Pollard jumped out of his car and ran to its side (no further) and, hands in pockets, waited for LE to approach. During initial contact, when asked, Pollard admitted to having a pocket knife. LE Terry frisked him and felt a pill bottle in a pants pocket. LE told him to have a seat in his cruiser and LE thought that Pollard was overly nervous and defensive. LE and Pollard chatted until the K9 team showed up, sniffed the car and alerted. The shoebox was full of cocaine.

The court first addressed whether there was a sufficient foundation presented for the court to find probable cause based on the alert of the K9. The team had been together working for about 8 years; they had completed a 6 week training program prior to being deployed; this program tested the team and certified the dog as a drug detecting K9; that certification was valid at the time of the sniff in this case. K9 was an aggressive alert K9 which received positive reinforcement. The team was required to train consistently 16 hours per month and the unit’s supervisor signed off completion on each 16 hours of training. Remarkably, in the month prior, K9 found every hidden lure without a single false indication—even in scenarios with multiple distractions.

The defense expert tried to denigrate the K9 team but acknowledged that he never assisted or trained dogs with the specific agencies in this case, so he was unfamiliar with their training methodologies. Nor was he familiar with K9 or his baseline behavior. Likewise, the defense expert never spoke to handler’s supervisors, who approved the reports, about K9’s training. He further stated that there is no national standard for dog training. Instead, each organization has their own certification standard. Finally, defense expert said it would be difficult to reward K9 with a toy on a busy highway (apparently K9 only got positive interactions without his toy on this occasion).

Pollard asserted three areas on appeal: (1) Did LE have probable cause to pull Pollard over; (2) Did LE have reasonable suspicion to deploy K9; and (3) Was K9’s alert reliable enough to establish probable cause? The answer to all three inquiries was “yes.” LE observed Pollard commit two traffic infractions; the informant’s tip coupled with Pollard’s behavior triggered reasonable suspicion to have K9 sniff the vehicle; and—defense’s expert’s testimony notwithstanding—K9 was certified, trained, and reliable.

The traffic stop was valid as LE observed both violations and the trial court credited his testimony as accurate. On appeal, the court held there was no reason not to adopt the trial court’s findings on this issue.

The appellate court also held that there was reasonable suspicion of other crimes to justify the deployment of the K9. LE had a tip that Pollard was smuggling drugs, and agents saw him place a package in his trunk while exiting the hotel the morning of the stop. This tip was corroborated because it asserted that Pollard would be driving the white Cadillac, and LE confirmed this. When coupled with Pollard’s leap out of his Cadillac and his “overly nervous and defensive” behavior, these circumstances amounted to reasonable suspicion independent of the original grounds (speeding and marked lane violation) for stopping Pollard.

The appellate court then turned to the third issue; reliability foundation for the K9. The court first held that the defense expert could testify and therefore considered his testimony in their ruling.

The court held that it was undisputed that OPOTA, a bona fide organization, certified L9 and that OSHP approved K9 and handler’s sixteen-hour training requirement in the month before the search. Thus, the Court presumed K9 was reliable. Considering this, Pollard must then show that K9’s certification or training was flawed—two herculean tasks, considering K9’s flawless training record and defense expert’s unfamiliarity with how K9 behaved or was trained. The defense expert was unable to do either.
Therefore, the appellate court upheld the search of the vehicle.

Note: Even though the defense expert was permitted to testify, he really didn’t have anything of value to say. The K9 was certified, up to date on training and had a stellar track record. Remember, though, that a stellar track record is not a requirement; if you have had to remediate your K9 in any area, testify to that and that your K9 successfully completed remediation and that will work as well.

State v. Rose (Delaware 2022) 2022 Del. Super. LEXIS 274
Odor of Marijuana as Probable Cause

LE was patrolling a Wilmington neighborhood at night and smelled marijuana while they drove past a parked car occupied by one individual. LE did not see any indication that marijuana was being smoked in the car and never saw anyone operating the vehicle. After a single pass around the block, and still smelling marijuana (could not determine if raw or burnt), LE detained Rose, the vehicle’s occupant, who then allegedly spontaneously confessed to a variety of crimes. His car was searched and contraband was found.

Rose moved to suppress all the evidence obtained through his detention and subsequent arrest, arguing LE’s detection of an odor of marijuana associated with his parked vehicle was not reasonable suspicion to permit an investigative detention. Here, the court held that the only facts preceding Rose’s detention that the drug trained LE articulated were (1) a car occupied by one person, parked on a residential street at night in an area known for drug activity, and (2) the odor of marijuana associated with that car. Neither LE testified that they had received specialized training regarding the location or varying intensity of drug odors. The court found, however, that they did not need to reach that credibility issue because, even accepting LE’s testimony at face value, their vague description of the odor of marijuana does not rise to the level of reasonable articulable suspicion permitting Rose’s detention. Possessing a small amount of marijuana in Maryland was no longer a crime. Previous cases have held 1) that the odor of marijuana can be a part of probable cause and 2) the odor alone is not enough for probable cause. However, a Delaware Supreme Court case has held that the odor of marijuana can be enough to reach the level of reasonable suspicion, which would allow detention and subsequent investigation.

The appellate court therefore found that a vaguely described odor of marijuana associated with a parked vehicle, without any further credible testimony regarding whether the odor was burnt or raw and without any other facts suggesting the vehicle’s occupant was engaged in criminal activity, does not amount to reasonable articulable suspicion justifying an investigatory detention of the vehicle’s occupant.

Note: Not sure if LE was only able to testify what was in the record or if the government did not ask the right questions. The record was silent on the training and experience of LE regarding the odor of marijuana, so the court had nothing to determine if LE really could detect the odor of marijuana. Also, the court kept using the word “vague” when talking about the testimony of LE regarding the odor of marijuana. Practice note: when you testify about an opinion (I smelled this; I believed that), you (and the government’s attorney) have to lay a reliability foundation of training and experience you possess to form that opinion. This was not accomplished here, but I don’t know if it was because LE actually didn’t have that training and experience or the government’s attorney didn’t ask all the right questions. I rather think it was the latter.