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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 2023 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are published and sometimes that takes a month or two. That then causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (“Unpub.” or “U”) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. Also, the arguments in these cases can be used; the case just can’t be cited as precedent in court.
I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are always changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.
Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.
(Disclaimer: I do not represent any individuals, handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team and/or your local prosecutor regarding the issues addressed in this update.)
MARIJUANA UPDATE FROM JULY 2023 FOR AUGUST 2023 UPDATE
So far in 2023, Delaware and Minnesota legalized adult-use marijuana and Kentucky approved a medical marijuana program, but legalization efforts have hit roadblocks in Oklahoma and Virginia.
A campaign to legalize adult-use marijuana in Ohio announced it had submitted the necessary signatures to put legal pot on the ballot this November.
Sponsors and supporters of an effort to legalize adult-use marijuana via an amendment to Florida’s constitution urged the state Supreme Court on Wednesday to approve the initiative for the ballot, arguing that they followed the procedures laid out by the court in previous failed efforts. However, Florida’s attorney general has asked the state’s highest court to block a marijuana legalization effort.
Reform advocates are adjusting expectations after top Republicans in the North Carolina House of Representatives said an effort to create a medical marijuana program is effectively dead this session because it could not get majority support from the GOP caucus.
The Republican chair of a U.S. House of Representatives subcommittee on Thursday ripped into the Food and Drug Administration, saying it has flouted its obligation to regulate hemp-derived cannabidiol products, which Congress decriminalized in a 2018 farm bill.
INDEX OF CASES REVIEWED FROM JULY 2023 FOR AUGUST 2023 UPDATE
State v. Lindekugel (Minnesota 2023) 2023 Minn. App. Unpub. LEXIS 545 – Odor of Marijuana as Probable Cause
Rock v. Cummings (Arizona 2023) 2023 U.S. Dist. LEXIS 114442 – Excessive Force; Qualified Immunity; Continuing Liability for Duration of Bite
Commonwealth v. Merced (Massachusetts 2023) 2023 Mass. App. Unpub. LEXIS 332 – Traffic Stop; Parallel Investigation; Prolonged Detention; Sniff as Probable Cause
Commonwealth v. Owens (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 1634 – Traffic Stop; Prolonged Detention
Huipio v. City of San Jose (California 2023) 2023 U.S. Dist. LEXIS 117065 – Excessive Force; Qualified Immunity; Bite Duration
United States v. Randle (Illinois 2023) 2023 U.S. Dist. LEXIS 117130 – Traffic Stop; Prolonged Detention; Alert as Probable Cause
United States v. Cates (Wyoming 2023) 73 F.4th 795 – Traffic Stop; Prolonged Detention; Reliability Foundation
Martinez v. Jenneiahn (Colorado 2023) 2023 U.S. App. LEXIS 17609 – Excessive Force; Qualified Immunity
United States v. Calixtro-Loya (Minnesota 2023) 2023 U.S. Dist. LEXIS 119700 – Traffic Stop; Prolonged Detention
People v. Gyorgy (California 2023) 93 Cal. App. 5th 659 – Traffic Stop; Alert as Probable Cause; Prolonged Detention
Smith v. Lee (Louisiana 2023) 73 F.4th 376 – Civil Rights Violations(Unlawful Entry); Qualified Immunity; Excessive Force; Bite Duration
People of the Virgin Islands v. Sweeney (Virgin Islands 2023) 2023 VI SUPER 40U – Traffic Stop; Odor of Marijuana as Probable Cause; Foundation
United States v. Heard (North Carolina 2023) 2023 U.S. Dist. LEXIS 121861 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. McCrary (Georgia 2023) 2023 U.S. Dist. LEXIS 125190 – Traffic Stop; Collective Knowledge Doctrine; Alert as Probable Cause
State v. Joseph (Rhode Island 2023) 2023 R.I. LEXIS 88 – Traffic Stop; Prolonged Detention; Alert as Probable Cause; Racial Bias
Adams v. City of Cedar Rapids (8th Cir. Iowa 2023) 2023 U.S. App. LEXIS 18695 – Excessive Force; Qualified Immunity
Rush v. State (Georgia 2023) 2023 Ga. App. LEXIS 371 – Traffic Stop; Prolonged Detention
Ross v. United States (6th Cir. Ohio 2023) 2023 U.S. App. LEXIS 18848 – Traffic Stop; Reliability Foundation
State v. Kinney (Ohio 2023) 2023-Ohio-2549 – Traffic Stop; Prolonged Detention; Community Caretaking Function
United States v. Bible (6th Cir. Michigan 2023) 2023 U.S. App. LEXIS 18991 (Unpub.) – Traffic Stop; Prolonged Detention
Jackson v. City of Santa Ana (California 2023) 2023 U.S. Dist. LEXIS 128725 – Excessive Force
United States v. Williams (Iowa 2023) 2023 U.S. Dist. LEXIS 130902 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause
United States v. Castaneda (5th Cir. Texas 2023) 2023 U.S. App. LEXIS 19154- Traffic Stop; Reasonable Suspicion; Prolonged Detention; Collective Knowledge Doctrine
United States v. Christie (Tennessee 2023) 2023 U.S. Dist. LEXIS 129172 – Traffic Stop: Prolonged Detention; Reasonable Suspicion
State v. Kumuhone (Ohio 2023) 2023-Ohio-2586 – Traffic Stop; Alert as Probable Cause
State v. Li (Rhode Island 2023) 2023 R.I. LEXIS 90 – Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause; Reasonable Suspicion
State v. Heath (Ohio 2023) 2023-Ohio-2647 – Traffic Stop; Prolonged Detention; Reasonable Suspicion
CASES REVIEWED FROM JULY 2023 FOR AUGUST 2023 UPDATE
State v. Lindekugel (Minnesota 2023) 2023 Minn. App. Unpub. LEXIS 545
Odor of Marijuana as Probable Cause
LE saw Lindekugel in a pick up that was parked a bit crooked in a hotel parking lot in a high crime area. LE thought Lindekugel might be impaired so LE ran the registration after parking about 15 to 20 feet away without activating any emergency equipment. As LE approached, LE saw Lindekugel attempt to hide a short glass or plastic object. LE asked what he was doing and he claimed he was trying to contact his friend so he could get back into his hotel room. LE smelled the odor of raw marijuana as Lindekugel unrolled his window. Lindekugel claimed he was staying at the Motel 6 which was about a mile away. LE asked for back up and asked Lindekugel to roll his window down farther so they could more easily talk to one another. Driver’s license was presented, but Lindekugel struggled to give LE his address. When asked how much he had to drink, Lindekugel said he was just tired and LE could give him a breathalyzer.
LE then started looking into the vehicle and got Lindekugel to produce a vape pen with nicotine. He tried to move a bag into the backseat and LE asked what was in it. Lindekugel said, “If I say no, what are you gonna do?” Lindekugel then asked LE what he was worried about, and LE said that the items on the floor looked like plastic baggies. LE saw that one plastic baggie had a “green leafy substance in it that was consistent with marijuana.” Lindekugel said that the items were not plastic baggies—they were THC cartridges for his vape. Lindekugel handed the cartridges to LE and explained that they were from Minnesota and that he had a prescription for them. LE did not ask to see Lindekugel’s prescription. Lastly, LE said that he saw Lindekugel holding an item that looked like a pipe when he approached the truck. Lindekugel stated that he did not know what he was holding when LE arrived, but speculated that it could have been the tablet he was using to activate his phone.
LE then asked for consent which was denied. LE searched based on the smell of marijuana and the THC cartridges. There was a glass pipe and numerous containers of potential narcotics.
Lindekugel first claimed that the contact with LE was a detention. The appellate court disagreed, stating that because the patrol car was not blocking him, LE approached in a nonthreatening manner and was polite and friendly throughout, this was a consensual contact.
The appellate court went on to hold that LE had had a particularized and objective basis for suspecting criminal activity. LE saw an occupied truck with its interior lights on straddling parking lanes after bar close in a high-crime area. Based on these particularized facts and in light of his experience, LE had an objective basis for suspecting that Lindekugel was impaired, and that criminal activity K9 have been afoot. Therefore, LE had reasonable, articulable suspicion of criminal activity to support his seizure of Lindekugel (when he ordered him out of the vehicle).
The court addressed the vehicle search next. Since there was a basis for detaining him and LE detected the odor of marijuana (for which the law is well-settled), LE had probable cause to search the vehicle.
But Lindekugel nevertheless urged the appellate court to overturn its “unsound” precedent because the Minnesota legislature has legalized industrial hemp and the smell of hemp is indistinguishable from that of marijuana. The appellate court held this argument to be unavailing. In addition, the appellate court further held that because Lindekugel was exhibiting signs that could indicate impairment, as well as spotting packaging and a small amount of marijuana, this would have supplied probable cause as well.
Note: It’s been interesting to see how different courts have dealt with the issue of odor of marijuana as probable cause. I can just imagine these Minnesotan justices staring down defense counsel with contempt on their faces. They were not going to entertain such foolery as holding the odor of marijuana was no longer probable cause just because there was a similar substance out there that smelled the same as marijuana.
Rock v. Cummings (Arizona 2023) 2023 U.S. Dist. LEXIS 114442
Excessive Force; Qualified Immunity; Continuing Liability for Duration of Bite
LE got a 911 call and stated that Rock had just threatened his parents with a knife. This turned out later to be false. When LE arrived, Rock went into the backyard and hid in a shed. Handler announced before entering the backyard that he was LE and if Rock didn’t come out, he would deploy his K9. After no response (Rock claims he did not hear the warnings). At the shed, the K9 was deployed and engaged. K9 was engaged for 41 seconds during which he dragged Rock out of the shed.
Rock claimed that the bite itself was excessive force and that the bite duration was too long and therefore another theory of excessive force. For the deployment, the court found that the policy of the agency was to have announcements made using the loudspeaker on a patrol car to make an announcement that could be heard a significant distance away. There was an announcement, but Rock said he only heard “Police” and the rest of the announcement was garbled. The policy went on to state: After a reasonable time lapse without a response, the K9 may be deployed. The K9 track can be conducted on or off lead at the handler’s discretion. The handler will maintain visual contact with the K9 as much as feasible, depending on the location and conditions.
There was a lot of discussion with the victims which was a lot of cross talk and confusion. However, it was clear that Rock presented a significant danger to at least the victims (his parents). The state of the evidence at the time of deployment of the K9 was that at least one of the parents was threatened by Rock with a knife. LE then deployed the K9 after opening the shed door. K9 attached to Rock’s upper arm and handler pulled on K9’s lead, saying, “Good boy. Come out. Come out. Good boy.” K9 then dragged Rock out of the shed by pulling on his arm. Rock was holding onto K9’s lead. He is instructed to let go and give LE his arm. LE then lift Rock and rearrange him so he was face down. K9 was still attached to Rock’s arm. LE is able to control both arms at that point and another officer tells handler at 27 seconds to get K9 off. It then takes 14 seconds for the handler to choke the dog off. (Oddly, the handler that deployed the K9 was not the handler that choked the K9 off. Not really sure what’s happening there). 6 minutes later, the parents then started walking back their interpretation of Rock’s behavior (not surprisingly) and claimed that there was either no knife or no knife was used in a threat.
The court ultimately held that all defendants were dismissed from the suit which alleged excessive force for the deployment of the K9 and this was based on qualified immunity after determining that LE did not have notice that such a deployment was unconstitutional. However, the appellate court ruled that the handler(s) was still on the hook for the duration of the bite.
On the theory that the duration of the bite constituted excessive force, the appellate court looked at the Graham v. Conner elements. For the first factor, the issue of the knife being part of the threat was a good faith but mistaken belief on LE’s part. The court determined that the severity of the crime was high and in favor of LE given the information LE had at the time of deployment. However, the second element did not land in LE’s favor, because, the court held, the K9 had neutralized the threat Rock posed. To the court, it was obvious when the shed door opened that Rock was in an empty shed with nothing in his hands. This could cause a reasonable jury to determine that the Rock did not pose an immediate threat during most of the lengthy bite sequence. (Lengthy was the court’s language). Finally, once the K9 bit Rock and hung on, this ended Rock’s evasion/resistance to arrest. The court stated that a reasonable jury could find that Rock’s failure to present his arms and to let go of the were not acts of resistance, but acts of self- preservation.
The Court next considered “whether there were less intrusive means of force that might have been used.” Given that Rock was basically immobilized by the K9 attached to his arm, it was clear that Rock was unarmed, that Rock was face down and that there were 4 LE present, a reasonable juror could find that the K9 could have been released earlier.
Therefore, the first prong of qualified immunity is not met for LE. The court then turned to the issue of clearly established law. The court then analyzed the Watkins case. In that case, the bitee was resisting the dog and recoiling from the pain. Therefore, in both the current case and the Watkins case, there was non-compliance with LE orders because there were an additional 15 seconds that K9 was left on the bite that allowed a theory of excessive force to proceed.
Rock’s only remaining claim is his excessive force claim against handler predicated on a “duration and encouragement” theory.
Note: The encouragement part of the claim is that handler was telling the K9 “good boy.” This could be viewed as egging on the K9 to bite harder. This can be addressed in testimony, but you will need to work with your attorney to make sure that a jury understands why you do this. It K9 be a better practice to wait to reward your K9 after he is released from the bite.
The courts are becoming more and more willing to assign liability to smaller amounts of time. Meyer’s Police K9 Training’s position is that as soon as there is some control over the suspect (not necessarily handcuffed), then release the K9 and be ready to re-engage if the suspect becomes resistive or combative such that the other resources on scene can’t get him under control again. In this case, if that was the sequence, it would eliminate the duration and encouragement theory and this would have been a clean sweep for everyone.
Commonwealth v. Merced (Massachusetts 2023) 2023 Mass. App. Unpub. LEXIS 332
Traffic Stop; Parallel Investigation; Prolonged Detention; Sniff as Probable Cause
Merced was apparently the target of a parallel investigation as the court found that after a proper traffic stop and a lawful order to get out of the car, any delay was justified for a K9 team to arrive to continue the parallel investigation (trafficking drugs and traffic violations were the two parallel investigations). The court also held that the properly trained and qualified K9’s alert was sufficient to provide probable cause to search the vehicle.
Note: Very short case as this was an appeal in which the reviewing court was limited by the record in the trial court (Merced couldn’t bring up something he hadn’t raised in his jury trial in the lower court). Remember, if you are the LE who is doing the parallel investigation, if you are in a position to use the information of the parallel investigation and either you or the informed LE are on scene, that parallel investigation can constitute reasonable suspicion/probable cause in and of itself.
Commonwealth v. Owens (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 1634
Traffic Stop; Prolonged Detention
On June 24, 2021, LE stopped a grey Jeep, driven by Owens, for speeding and following too closely. When LE approached, Owens was smoking a cigar. There were several backpacks and duffel bags in the back of the Jeep. The Jeep was a rental and Owens license was suspended. Owens and passenger made conflicting statements regarding their travels. LE told Owens that if passenger was licensed, he would release all of them. LE then ran a check on the passenger. She was clear and validly licensed so, at that point, the Jeep and occupants were free to leave as the traffic investigation was completed. However, LE held the pair for over an hour to conduct a K9 sniff of the vehicle. He questioned them further and got additional suspicious information. Since this information was gathered after the Rodriguez moment, it could not be used to determine reasonable suspicion of another crime.
The court found that LE relied on the following factors to continue the detention: (1) the car was rented in Owens’s mother’s name, who was not present in the vehicle; (2) Owens was smoking in the rental; (3) Owens did not know passenger’s exact age; (4) Owens was driving with an expired license; and (5) Owens and passenger gave “differing” travel itineraries. The trial court concluded that these factors did not rise to the level that LE had a reasonable suspicion that Owens had committed a crime. Rather, these factors at best, demonstrated a unparticularized suspicion or hunch that Owens was engaged in criminal activity. As a result, the court suppressed all evidence derived in the subsequent warrant search and Owens’ inculpatory statement as fruit of an illegal detention.
The appellate court agreed.
Note: Prolonged detention cases are fact driven so it is critical that every fact that could assist in finding reasonable suspicion of additional crimes be fleshed out. Here, I see that the court noted there were backpacks and duffel bags in the rear of the Jeep wasn’t addressed. How many were there? More than what two people would have? Also, where was the car rented? Did it have a no smoking policy? While Owens was smoking, there was no discussion of why that was significant to LE? There was more here to work with but it appears it was not presented. You are the one that knows this law so make sure the attorneys have everything they need to get the most accurate result.
Huipio v. City of San Jose (California 2023) 2023 U.S. Dist. LEXIS 117065
Excessive Force; Qualified Immunity; Bite Duration
This was a call from a DV victim who told 911 that her husband, Huipio, had physically attacked her near their home. This was the culmination of several days of abuse, threats and suicide ideation. Huipio was known to carry at least a box cutter if not a knife. After an hour of announcements and attempts to get Huipio to come out, a plan was made to go in. A search of Huipio’s home (where they found a large bloody knife in the bathroom sink) led LE to a locked shed in the back yard. The shed had what appeared to be small caliber bullet holes in the door. LE pried open the door and saw Huipio lying on his back with his hands up in a confined space. Handler deployed K9 almost simultaneously with the shed door opening and the K9 bit Huipio on the ankle. Handler grabbed the K9 by the collar and dragged Huipio out of the shed with the K9 attached. Later, LE testified that the space in which Huipio was lying in the shed was not big enough for human LE to go in and subdue him. Once Huipio was outside and other LE grabbed his hands, the K9 was removed from the bite. The total duration of the bite was between 20 – 25 seconds.
The appellate court analyzed the Graham factors and qualified immunity. They took up the question of whether it was clearly established that a bite in this situation was unconstitutional. It was clearly established at the time of the K9 bite in this case that the use of K9 force against a suspect who has “fully surrendered and is under the officer’s control” K9 violate the Constitution. Meanwhile, allowing a K9 to maintain a bite on the suspect before that point had been found not to constitute excessive force. What is not so clear from the cases, however, is the point at which suspect can be considered to have “fully surrendered” and be “under the officer’s control.”
The relevant context in this case at the time LE encountered Huipio includes their knowledge that: (1) Huipio was being pursued for an incident of domestic violence in which he physically attacked his spouse on that very day; (2) Huipio had an outstanding court case for domestic violence; (3) Huipio had threatened to kill his spouse with a knife the day before; (4) Huipio could have been armed given that LE found a large bloody knife in his home and bullet holes in the door of the shed where he was hiding, and Huipio carried a knife or box cutter for work; (5) Huipio was suicidal and had threatened to commit suicide by provoking the police to kill him; (6) Huipio had a history of substance use; (7) Huipio had not surrendered even after hours of police announcements; (8) Huipio was found hiding in a small, cluttered shed with his arms and hands up, feet at the door of the shed, and large drywall-type items close to each side stretching almost the length of his body; and (9) several officers stood at the door of the shed when it was opened, some with weapons drawn, and they illuminated Huipio and the interior of the shed, but they were unable to enter the shed to gain control of Huipio’s arms or hands. LE stated that they feared for their safety.
In light of the totality of these circumstances, LE’s actions in this case remain within the “hazy border” between acceptable and unacceptable force. Accordingly, Huipio has not carried his burden of establishing that existing case law at the time of the K9 bite in this case clearly established that a reasonable officer would know that the duration of the K9 bite was unconstitutional. LE was granted qualified immunity.
Note: It’s important to kind of read between the lines here. Courts are increasingly finding reasons to pass on the initial bite but not on the duration of the bite, particularly when there are enough resources on scene to gain control of the suspect. Note that this suspect was not in cuffs when the K9 was released, but there was still some question of when the bite became unconstitutionally prolonged. You can’t rely on the suspect being handcuffed to finally justify the release of the K9. Instead, you must release your K9 at the moment when control is obtained over the suspect. This K9 be prior to handcuffing depending on the facts of your case.
United States v. Randle (Illinois 2023) 2023 U.S. Dist. LEXIS 117130
Traffic Stop; Prolonged Detention; Alert as Probable Cause
After a controlled buy involving Randle as a narcotics trafficker, LE watched as Randle and female get into a vehicle after putting a bag in the trunk (he was the buyer of the CS). Troopers were alerted to perform a wall stop. The plan was for one trooper to handle the traffic violation and handler to run his K9 during that traffic violation. However, Randle gave consent for the sniff. Randle was able to foot bail, but three pounds of meth in the trunk.
The court addressed whether the stop was prolonged due to the sniff. It held that the K9 alerted about 10 minutes after trooper first contacted Randle. The court held that this time period was reasonable for the traffic investigation so there was no prolonged detention. In addition, the court held that even if the traffic stop had been prolonged beyond the time reasonably necessary to accomplish the purpose of the stop, LE by then had reasonable suspicion of other criminal activity based on the drug investigation. The K9 alert provided the officers with probable cause to search the vehicle.
Note: The Court made short work of this appeal. It’s interesting to note that the court used the old standard of length of time rather than actually comparing the traffic investigation with the time it took for the K9 to alert which is the prevailing standard under Rodriguez. In any event, Randle’s appeal was denied.
United States v. Cates (Wyoming 2023) 73 F.4th 795
Traffic Stop; Prolonged Detention; Reliability Foundation; Reciprocal Discovery
Troopers were doing drug interdiction on I-80 when they saw a SUV with New York plates drive past them. It was going slightly over the speed limit. Troopers caught up to him and he turned onto an exit ramp, but was speeding there too as confirmed by the trooper’s radar. Trooper initiated a traffic stop.
Cates was the driver. He handed over his license and stated the SUV was a rental. Cates thought he might have the rental contract on his phone. Since this might take awhile to locate, trooper asked Cates to come back to his car while he issued a warning for the speeding. Trooper notices a refueling cannister for butane lighters on the passenger seat. Trooper had knowledge this item was used to heat meth to inhale the vapors. There were several duffel bags in the back; Cate’s hand was trembling and he did not make “decent” eye contact. As trooper walked back to his car, he called for a K9 team to respond. He then texted from his car to the handler to respond. There was simultaneous discussion of Cates’ travel plans.
While checking Cates’ record, a warrant popped up. Ultimately, with discussion and more investigating, it was determined that the warrant was not for Cates. Interestingly, when his criminal record was being brought up, Cates got more squirrelly. Around this point, the K9 team arrived and went directly to Cates’ SUV. The K9 alerted prior to the paperwork being completed on the warning citation or Cates presenting the rental car contract. The SUV contained 48 pounds of marijuana.
Prior to his motion to suppress, Cates filed a request for discovery, demanding handler’s application to apply to be a K9 officer; monthly deployment records and training records (both formal and informal) for the year prior to the sniff; K9’s certification for the entire time handler was employed by the agency and discipline records for handler. The trial court denied this request, stating that they would not become necessary until the government put on its evidence at the suppression hearing and Cates was not entitled to prehearing production of documents re: the K9 team other than their certification. Cates was allowed to make the same motion at the close of the government’s evidence at the suppression hearing.
The government produced testimony that K9 was purchased in 2015 from a company that provided K9’s initial instruction, which included training her to detect marijuana, cocaine, methamphetamine, and heroin. After K9’s initial training, handler and K9 completed approximately two and a half weeks of further training together.
Handler testified that he and K9 have to be certified every year, and re-certified the morning of the traffic stop. Handler described the testing. In addition, he was certified by his agency in the fall of the prior year. Handler stated that he and K9 do 16 hours of proficiency training per month and that he keeps logs of all activities. However, when Cates again moved for discovery of the records, the court held that Cates had not proved the evidentiary threshold which would compel the court to order discovery.
The court held that the stop was not prolonged because the traffic stop investigation was still on-going at the time the K9 alerted, which then gave LE the probable cause to search the vehicle. Cates also claimed that trooper’s efforts to contact a K9 team prolonged the stop, specifically the text sent from the patrol car. The text was “run it” and trooper pushed send immediately thereafter. This took about 10 seconds. The court held on that issue that since Cates was not able to produce a rental contract, the investigation had to wait for that information to determine if Cates was in lawful possession of the vehicle. Therefore the sniff and the traffic investigation were simultaneous and the traffic investigation was not prolonged since trooper was diligently engaged in the traffic investigation.
Note: The holding on the discovery was surprising to me. How is a defendant to know whether there is a sufficient reliability foundation for the alert to be received into evidence unless he is allowed to review the records first? In addition, the court said he had to prove a threshold of evidence (undefined) prior to getting the records. That’s a Catch-22 and I think it’s the wrong conclusion. This is a federal case out of Wyoming so conservative rulings from there are not a surprise. But they do have to follow federal law and here, on the discovery issue, I think they did not. As to the prolongation issue, I think they are on solid ground, but to avoid problems, make sure that you text in such a way that it is clear it does not extend the stop. Some courts would say those 10 seconds would violate Rodriguez.
Martinez v. Jenneiahn (Colorado 2023) 2023 U.S. App. LEXIS 17609
Excessive Force; Qualified Immunity
Martinez was captured by bailbondsmen when they shot him with non-lethal bullets, struck him in the head, and tasered and pepper sprayed him, sending him to the hospital. The next morning, Martinez scampered out of the hospital in his underwear and hospital gown. Hospital security called LE and said that he had left and that there were felony warrants out for him.
LE searched for Martinez, and even though two officers saw him, they did not talk to him. There were various reports of Martinez doing sketchy things and finally hid in a closet in an apartment building. He then passed out. A K9 indicated that Martinez was in the closet so after 10 to 12 minutes, LE decided on a dynamic entry. Handler released the K9 into the closet while other officers covered with taser, shotgun and gun. Martinez began screaming when the K9 bit him. After 15 to 20 seconds, the K9 was released. There was a 4 cm gash on Martinez’ arm.
When an excessive force claim is made, and qualified immunity is raised as a defense, then the two hurdles of qualified immunity must be cleared. The courts can consider them in any order and if one is not met, the other does not have to be addressed. In this case, the court held that Martinez failed to show that LE violated a right that was clearly established.
To do this, the court looked at precedent and determined there were no USSC or 10th Circuit opinions where LE acting under similar circumstances was held to have violated the Fourth Amendment.
Note: These cases again are very fact driven, so be sure your report reflects the justification for deployment, duration and release. Even though this was not found to be excessive force, it is a bit of a warning. Here, as far as LE knew, Martinez was a bit confused and dressed in a hospital gown and underwear only. However, he was found in a small and unvisualized space where at least unconventional weapons could be found. That needs to be articulated in your report so that when called into court, you can show your thought process at the time which will be powerful evidence.
United States v. Calixtro-Loya (Minnesota 2023) 2023 U.S. Dist. LEXIS 119700
Traffic Stop; Prolonged Detention
Trooper noticed a Toyota speeding. He pulled it over. There were 2 occupants. The driver claimed her son was the owner of the car and she had permission to drive it. She produced driver’s license, registration and insurance. The car was from Oregon and that seemed suspicion to the trooper as Northern California is a source state. She was not very forthcoming about her destination.
Trooper testified to having made the following additional observations while speaking with driver: the Corolla’s transmission was still in “drive”; there was only one key in the ignition; and there were three mobile phones—one mounted on the windshield for directions and two in passenger’s hands. LE also observed at least one dog in the backseat of the Corolla, along with a dog mat and dog food, and he did not observe any visible luggage.
Before returning to his patrol vehicle, LE directed driver to shift the Corolla’s transmission into park. LE then went back to his patrol vehicle with driver’s license and vehicle registration and began preparing a warning citation for speeding. LE ultimately determined that the registered owner of the vehicle was an individual named “Carlos Eduardo Tejada Ramirez.” LE returned to the Corolla, returned driver’s documents and served the warning citation on her. LE testified at the suppression hearing that the traffic stop was over at that point.
However, immediately, trooper asked if there were anything illegal in the vehicle which was denied. LE then asked if he could run his K9 around the car real quick. Occupants consented. Occupants were cooperative with all directives and the tone throughout was congenial.
The K9 alerted under the car, but a search the passenger compartment, the trunk and under the hood did not reveal any C/S. This made handler suspect there were C/S in a hidden compartment in the car. The seats were also loose and it looked like the Corolla had been modified in the opinion of LE.
Both occupants were placed under arrest and put into patrol cars. The vehicle was towed to the fire department. Later, a hidden compartment containing 70# of meth was found when the floor mats and seats were removed.
Occupants claimed that the stop was unreasonably prolonged as the traffic investigation was over and LE did not have additional reasonable suspicion to run the K9 around the car after the traffic stop was concluded. LE articulated the following observations that he thought to be suggestive of criminal activity. Driver appeared nervous because the Corolla’s transmission remained in “drive” and the right turn signal remained activated after initially pulling over to the shoulder. He also observed three mobile phones in the vehicle—one mobile phone on the windshield, and two mobile phones being held by the passenger. Further, LE testified that he found it important that there was only a single key in the ignition because, in his experience, past vehicles with “drug loads in hidden compartments . . . are only used to transport drugs” and have “no house keys, no anything. Just the ignition key in the ignition.” Driver saying first that they were going to Minneapolis and then saying Bloomington and the Mall of America also caught LE’s attention. The presence of at least one dog in the backseat raised doubt for LE on occupant’s destination of the “Mall of America” because, according to LE, dogs are not allowed inside of the mall, and he felt the day was too hot for occupants to leave the dogs inside of the vehicle while they visited the shopping center. LE also found it significant that occupants were traveling from Oregon to “the Twin Cities Area” because, in his training and experience, the west coast is a source region for drugs and drug supplies transported “daily” to Minneapolis. Lastly, LE saw no visible luggage in the backseat of the Corolla, which he would have expected to see in small vehicle making a long trip “across the country.”
The appellate court held that this information, even considered in its totality, was not sufficient to establish additional reasonable suspicion of drug trafficking. It then proceeded to consider the evidence separately and concluded that there was not reasonable suspicion of another crime.
The appellate court then addressed consent. The court found that LE and the occupants visibly and collective calm and cooperative demeanor, along with occupant’s readily cooperative conduct of stepping out the vehicle without protest, reasonably suggests the voluntariness of occupants consent to the canine search of the exterior of the Corolla. Therefore, LE was authorized by the K9’s alert to search the vehicle.
Note: There were two other troopers with K9s on scene at least at the time of the sniff, but there was no other mention of them participating in any way. If there is another K9 team on scene, have them either take over the ticket writing duties or have them run their K9 while you work on the citation. That way, there is no issue of prolonged detention.
As to the additional reasonable suspicion, each jurisdiction sees this differently. The best thing you can do is justify by your investigation, training and experience why you did what you did in the investigation. Finally, don’t assume that consent is going to hold up. Here, the ambient noise on the recording block the verbal response of the occupant. That’s why the court was talking about their attitudes. In addition, consent can always and immediately be revoked. Better to build in the sniff while the traffic investigation is going on if at all possible.
People v. Gyorgy (California 2023) 93 Cal. App. 5th 659
Traffic Stop; Alert as Probable Cause; Prolonged Detention
LE was involved in surveillance at a local motel known for drug trafficking. LE contacted handler and said that a black pickup had been at that motel and that it had acted suspiciously (no further). Handler, knowing the motel was known from drug trafficking, spotted the pickup and followed. Handler pulled Gyorgy over for unsafe lane change. Gyorgy provided his license to handler. Handler also asked Gyorgy questions about whether he was a sex or narcotics registrant, whether he possessed any needles, weapons or drugs. Gyorgy said he was a sex registrant but denied everything else. Handler then questioned Gyorgy about his registration, whether he was current and where his residence was at that time. Gyorgy said that he had been living with his mother, but she had passed away and he was having issues with his family and inheritance. After some prodding, he claimed he was staying in motels including the one he was seen at.
Handler had Gyorgy step out and told him to sit on the curb until another officer arrived. When that officer arrived, about 5-6 minutes later, handler Terry frisked him for weapons. Handler then told Gyorgy he was going to have his K9 sniff the car. Gyorgy said he didn’t consent to that. Handler told him he was going to sniff the car because he had the right to do so. Handler allowed Gyorgy retrieve his small dog and then rolled up the windows prior to the sniff.
K9 alerted to the vehicle and handler then let the K9 into the vehicle’s cab. However, there was no alert inside the vehicle although K9 showed interest. A search of the vehicle revealed meth, a pipe, a gun, ammo and magazine. Gyorgy was prohibited from owning a gun due to his felon status.
During the suppression hearing, handler testified that the backup officer was working on the traffic citation while he ran the K9. Handler admitted on cross that this was the common practice, he didn’t know whether backup was filling out the citation. The body cam showed that backup never took out a citation booklet and no citation was filled out by either handler or backup. A third officer arrived after the K9 alert, but handler testified by then he had probable cause for additional crimes.
The court held that the stop was unlawfully prolonged as handler detoured from the traffic stop’s mission almost immediately. Questioning on non-traffic related matters took about 5 minutes prior to handler telling Gyorgy the reason for the stop. Then handler prolonged the stop some more by doing things like removing Gyorgy’s dog and rolling up the windows. He also had to guide K9 around the vehicle several times. Handler obtained Gyorgy’s driver’s license at the beginning of the stop, but the record does not show he did anything after that to investigate the traffic infraction. Instead, he spent most of the 11 minutes 54 seconds of the detention (prior to the K9 alert) performing tasks unrelated to the traffic stop mission. Examining the totality of the circumstances, the court concluded LE were not reasonably diligent in completing the traffic stop’s mission.
The court went on to hold there was no reasonable suspicion of additional criminal behavior. Asserting handler had a reasonable suspicion Gyorgy was not in compliance with his registration requirements, the government relied on handler’s testimony Gyorgy said he was registered in San Bernardino County but he had been staying at local motels (in Orange County), including the drug motel, for the past couple nights. Even if the court assumed handler had a reasonable suspicion Gyorgy was not in compliance with 290 registration requirements, there is no evidence in the court record handler was detaining Gyorgy to investigate this suspected criminal activity. Handler testified at the time he conducted the K9 sniff with he had not determined whether Gyorgy was in compliance with his registration requirements. But he did not testify to any action he or any other officer took to investigate whether Gyorgy was current with his registration or whether he was out of compliance by staying at the drug motel.
The court further stated that even assuming handler’s mission shifted from investigating a traffic violation to investigating Gyorgy’s compliance with his sex offender registration requirements, there is no evidence in the record handler was pursuing this mission. Instead, handler used K9 to sniff Gyorgy’s truck for drugs. This action was unrelated to any investigation of Gyorgy’s registration status.
Gyorgy’s detention was not made lawful by what handler could have done but elected not to do—investigate Gyorgy’s registration compliance. “The reasonableness of a seizure … depends on what the police in fact do.” (Rodriguez at p. 357.) Thus, even if handler had a reasonable suspicion Gyorgy was not in compliance with his registration requirements, the seizure was not carefully tailored to an investigation of that suspected criminal activity and therefore was unreasonable.
As for a reasonable suspicion Gyorgy may be “involved with drugs,” the government points to handler’s testimony he received a call from an undercover officer to be on the lookout for Gyorgy’s truck because it had been at the drug motel, which was known for drug trafficking, and the undercover officer reported the “vehicle had acted suspiciously.” These facts were insufficient to create a reasonable suspicion Gyorgy was “involved with drugs.” Gyorgy’s presence at the drug motel, without more, did not raise a reasonable suspicion he was engaged in criminal activity. As there was no explanation as to how Gyorgy’s “vehicle acted suspiciously,” this does not constitute a specific articulable fact supporting a reasonable suspicion. Moreover, handler did not describe any behavior by Gyorgy during the traffic stop that suggested his involvement with drugs. No evidence was presented at the suppression hearing, for example, Gyorgy exhibited symptoms of being under the influence of narcotics or that handler learned from a records check Gyorgy had prior drug convictions. Handler, therefore, had no factual basis for a reasonable suspicion, as opposed to a mere hunch or rumor, Gyorgy was engaged in criminal drug activity, and a hunch or speculation was an inadequate basis to prolong his detention.
The court granted the motion to suppress.
Note: Here, there could have been a probable cause stop via the collective knowledge doctrine had the surveilling officer given handler more info. We don’t know for sure because there is literally no other facts that address this issue.
However, the easy and available actions would have been to immediately hand over the traffic investigation to the back up officer, get Gyorgy out along with his dog, Terry frisk him and then run the dog. Rolling the windows up is not necessary (it is recommended) but the court found that this added time to the already extended time for the traffic stop. There should have been more investigation on the traffic stop to be able to hand it off to the back up officer. When he found out Gyorgy was a 290, he could have started investigating this as well. However, he was focused on getting drugs out of the vehicle. There were other avenues available, but not recognized by the handler.
Smith v. Lee (Louisiana 2023) 73 F.4th 376
Civil Rights Violations(Unlawful Entry); Qualified Immunity; Excessive Force; Bite Duration
LE received information that a murder suspect was hiding at one of two residences on State Street; 1906 or 1913 (across the street from each other). A search of 1906 did not produce the suspect. LE then proceeded to 1913, the home of Smith. LE knocked and Smith answered. She said she did not know suspect.
LE then said they asked if there was anyone else in the home and Smith said she thought LE only asked if suspect was inside. Both elicited a “no” response from Smith. Smith agreed to step out of her home, but according to her, one officer stepped inside her home to prevent her from going back in. There was no video so this is a factual situation that will need to be determined at trial. In any event, Smith exited her house and walked down the drive.
K9 team was stationed at the back of the residence. When Smith left the residence, the K9 team went to the front and another officer took up their position behind the residence. Handler gave three warnings and in the last one, said that the K9 would enter and bite. There was confusion as to whether anyone got consent to enter the residence to look for the suspect. The K9 team then entered her house and K9 was given the command to bite whomever he encountered. Unfortunately, the K9 was temporarily out of sight of handler when K9 went into a bedroom where an elderly man was sleeping until he heard noise so he was putting his shoes on. As he was leaving the bedroom, K9 bit him. Handler immediately determined this was not the suspect and removed the K9. The elderly gentleman said that the K9 bit him twice and handler did not immediately give the command to release the K9. He had bites on left thumb, left calf and left thigh.
On the unlawful entry issue, the government asserted that the entering officers reasonably believed that Smith had consented to entry. Smith said she was barefoot and when LE asked her to leave the residence, she turned to put on shoes. However, LE stepped into her home and prevented her from going back inside. After she walked down the driveway, the K9 team made their entry. However, the court also addressed the issue of the reasonableness of the belief of the handler that they had consent to go in. When the K9 team and the other officer traded positions, the other officer said they were “good to go.” Unfortunately, there was conflicting evidence on this issue as well. Therefore, qualified immunity was denied for the contested unlawful entries since the law on obtaining consent before entering a home is well established.
As to the excessive force claim, the court looked to the Graham v. Connor factors. Because the victim was not the person for whom LE was searching, the unlawful entry does not affect the Graham analysis. The excessive force claim must analyze what LE knew about the suspect, not the victim in this case. First, the suspect was wanted for murder, a very severe offense. The second factor was that the warrant indicated that the suspect used a gun to commit the murder and therefore, he was considered armed and dangerous. Third, LE believed he was hiding at the time of the K9 deployment. Therefore, all the Graham factors weigh in favor of LE.
The court then looked at whether the duration of the bite was excessive force. Here, the victim claimed that the K9 bit him on the calf; he pushed the K9 off. Then K9 bit him in the hand, so victim kicked him off. Finally, the K9 was able to bite him on the thigh and hang on. Victim said the duration was at least a minute but also stated he couldn’t say how long the K9 was on the bite. Once the K9 was on the thigh, handler caught up to K9 and within three seconds, handler removed the K9. Because there was no case law on the issue within the jurisdiction, the court held that even if there was excessive force, a handler was not on notice that such a fact situation would constitute excessive force. Therefore, qualified immunity applied to the duration of the bite.
Note: One of the problems with this case is that very little was captured on body cam. This is critical. If your deployments are well-considered, then your body cam will exonerate you. In addition, there appeared to be little forward planning. Part of your deployment plan would be to make sure someone was required to obtain consent and then announce that to the other responding officers. Here, the exit routes were covered so there was no issue of suspect getting away (at least in the court’s mind). Remember, courts are requiring there to be more and more justification for a K9 entry and/or bite so be sure you have coordinated your actions with the rest of the officers on scene and that you have good communication established. And elderly gentlemen waking up from his nap is going to make a compelling and sympathic witness, so you want to make sure you know where your K9 is and what that K9 is targeting and biting.
People of the Virgin Islands v. Sweeney (Virgin Islands 2023) 2023 VI SUPER 40U
Traffic Stop; Odor of Marijuana as Probable Cause; Foundation
Sweeney was driving a car with no front license plate. LE got the appropriate documents from Sweeney but no registration. Sweeney did not answer multiple questions about why they were stopped. At that point, LE smelled the strong odor of marijuana (LE was unable to tell if it was burnt or raw, just strong). Sweeney at first denied possession, but when told LE was going to search the car, Sweeney produced a baggie of marijuana and said that was all we (occupants) had. One passenger was in possession of a firearm. There was a firearm under the driver’s seat and a backpack in the rear seat had a firearm and marijuana.
The court held that the original stop was justified and moved onto the search of the vehicle. The court stated that because of the odor of marijuana, there would have been probable cause to search the vehicle.
The court opined that since there was no independent way to verify LE detecting the odor of marijuana, it comes down to a credibility issue. Here, the government did not show that LE had the capacity to detect the smell of marijuana. The government provided no evidence of LE’s training or experience in detecting the different smell of marijuana. In fact, LE testified that he was unable to say whether he could detect the scent of marijuana from the “plastic baggie” or jar that the officers recovered from the car.
In addition, the court addressed the manner in which the testimony described the packaging of the marijuana discovered as relevant to LE’s testimony. The marijuana that was handed to the officers by the Sweeney was enclosed in a plastic bag. The marijuana that was recovered from the search of the vehicle was packaged in a lidded jar and placed in a backpack. The Court was unconvinced by the testimony of the officers that at the time of the stop LE could have detected a strong scent of marijuana emanating from Sweeney’s vehicle. The Court was unconvinced because of the manner in which the marijuana described was packaged and LE’s inability to distinguish the difference in the odor of burnt and unburnt marijuana. The exclusionary rule is prophylactic. That is, it is designed to prevent law enforcement violation of citizens’ rights. The People failed to establish by the preponderance of the evidence of record that the officers had probable cause to search Sweeney and his vehicle.
Note: USVI is a federal jurisdiction like Puerto Rico. This was a mistake by the prosecutor. It’s easy to get a bit lazy on these types of hearings, but laying the proper foundation for an opinion (“I smelled weed”) is prosecutor 101. Maybe this officer actually didn’t have the correct training and experience and that’s why the prosecutor didn’t elicit that information, but it’s more likely that they just didn’t put on a thorough case.
United States v. Heard (North Carolina 2023) 2023 U.S. Dist. LEXIS 121861
Traffic Stop; Odor of Marijuana as Probable Cause
Heard was stopped by LE because he had a warrant for his arrest. Upon removing him from the car, LE saw a needle on the floorboard of the vehicle. LE Terry frisked Heard who had a small baggie of weed on him. A search of the car revealed a loaded gun and heroin along with scales and two cell phones.
Under the totality of the circumstances, the court held, LE had probable cause to search the vehicle for additional contraband. When Heard exited the vehicle, LE found a corner baggie containing a marijuana-like substance on Heard’s person. Consistent with his training and experience, the substance looked, felt, and smelled like marijuana. The use of a corner baggie reflected a common form of packaging for illicit substances. Most importantly, Heard admitted the baggie contained marijuana. Although this statement was unwarned, it may properly be considered within the probable cause analysis. These facts, taken together, support an objective belief that contraband was in the vehicle.
Heard then contended that the legalization of hemp at the state and federal level should foreclose a probable cause determination based solely on an officer’s senses and support adopting an odor-plus standard. The court disagreed. The Fourth Circuit has “repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place.” And this court had seen and rejected this same argument in a previous case. There appears little reason to reconsider this precedent based on the facts presented.
Heard draws on several state decisions to bolster his claim that an odor-plus standard should be adopted. Each case properly drew on the totality of the circumstances in assessing the existence of probable cause. To be clear, so too did this court. As explained above, Heard admitted that the substance found on his person was marijuana, not hemp. The corner-baggie packaging also fairly showed the substance to be marijuana, not hemp. Thus, even if the court were to accept Heard’s argument that odor-nil is no longer warranted and odor-plus should be adopted, Heard’s argument fails.
Note: The odor-nil v. odor-plus is the argument first made in Colorado; that if LE only has a legal amount of marijuana, then LE cannot keep investigating. This is also the issue where California has a split in the districts, although the odor-nil cases are not published (probably because no one wants this issue to go up a level as the law is constantly changing). Finally, this issue under federal law is odor-nil as there is still no legal amount of marijuana that has been promulgated by the federal government. At some point soon though, there will be some kind of legalization and then this issue will end up in front of the Supremes.
United States v. McCrary (Georgia 2023) 2023 U.S. Dist. LEXIS 125190
Traffic Stop; Collective Knowledge Doctrine; Alert as Probable Cause
McCrary was being investigated by the DEA as part of a large drug trafficking organization which had already netted 13 kilos of cocaine, $690,000, and a drug/money ledger accounting for thousands of kilos of cocaine coming into the area in the previous 3 years. This ledger showed that a man named Daniels was one of the largest customers, having received more than a thousand kilos of cocaine in this time period. There was evidence from wiretaps and texts that Daniels was in contact with McCrary about drug transactions and money from those transactions.
A wire tap intercept indicated that McCrary and Daniels were going to meet to transaction money for drugs. They indicated a location that DEA had already determined was a meeting place. DEA had on hand 5 search warrants, including two apartments. They also knew the car McCrary would be driving. As McCrary left the location, presumably with the drugs, LE had him stopped by handler. Handler did not know all the particulars of the investigation, but knew that DEA was investigating this particular vehicle.
Once the vehicle was stopped, one of the detectives from the investigation arrived almost immediately as he was following handler. Less than two minutes after stopping the vehicle, handler deployed his K9 which alerted on the vehicle. Drugs and a phone were found.
The court addressed the issue of collective knowledge first. Handler knew that the vehicle’s driver was being investigated for drug trafficking and handler was in contact with one of the detectives assigned to the investigation sharing updates before the stop. In addition, the detective that arrived on scene shortly after handler was also intimately involved in the DEA investigation. The fact that handler, who conducted the stop, had less knowledge of the investigation than his partner, the detective that was right behind him, does not bar application of the collective knowledge doctrine. Handler had at least basic information about the operation and his role in it, and his partner provided him with information and updates from the DEA on a two-way radio. These various levels of communication entitled handler to act on the information he received from his partner and the strength of the radio communication directing him to stop the vehicle. In addition, the court found that based on the collective knowledge doctrine, there was sufficient probable cause to search McCrary and his vehicle.
The court also held that the stop was clearly justified under the reasonable suspicion standard. LE had extensive wiretap and the surveillance evidence tying the vehicle to the ongoing DEA investigation. Moreover, at the time of the stop, the vehicle had been continuously surveilled from a known drug location where wiretap evidence suggested a drug deal had just occurred. These facts established the higher probable cause standard needed to stop and search the car. But even if they did not, there is no doubt that they provided the detectives with an objective justification for the stop based upon the reasonable suspicion that the Cadillac’s driver was engaged in criminal conduct.
Moreover, the nature of the brief detention was eminently reasonable. Handler was aware that the DEA suspected that the vehicle’s driver had just engaged in a drug transaction. He promptly deployed his K9 and conducted an open-air search of the vehicle, while allowing McCrary to stand at the back of his vehicle. The K9 alerted less than two minutes after the stop, at which point, probable cause to search the vehicle was established. It is hard to imagine a more reasonable, efficient, and minimally intrusive investigation. Considering the circumstances in this case, and in light of existing precedent, it is evident that the Terry stop was reasonable. Because the Terry stop was justified at its inception and was reasonably related in scope to the circumstances that justified the interference in the first place, no Fourth Amendment violation occurred.
Note: Really nothing new. Just make sure you loop in whoever is making the stop or participating as a handler or whatever with sufficient details about the investigation. You can see it’s a pretty low standard, but sharing as much as you can without compromising the operation will be helpful.
State v. Joseph (Rhode Island 2023) 2023 R.I. LEXIS 88
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Racial Bias
Handler stopped Figaro because he was abruptly swerving across lanes of traffic. Figaro stopped at a gas station and LE pulled in behind him and activated the overhead emergency lights. There were three occupants; Figaro was the driver, Joseph was one of the passengers. There was a female passenger as well, Whyles. As handler approached, Joseph immediately began speaking at a high rate very quickly, both stating comments and asking questions all at once. Handler then requested license, registration, and insurance from Figaro, and informed him that his driving was erratic. Figaro then indicated that he just wanted to go to the gas station for some food and gas; however, handler noticed that Figaro had over half a tank of gas. When Figaro handed over the requested documents his hand was shaking uncontrollably and his breathing certainly increased. The other two passengers turned over their identification documents to handler as well.
Handler had Joseph step out and asked him about his travels. Figaro was still nervous, sweating profusely and pacing back and forth so that handler had to keep telling him to stay behind the squad car. A conversation with Joseph indicated the same basic travel story as Figaro (they were at least not completely inapposite). There was a recent arrest for Joseph but with a different first name and different date of birth. There was discussion about searching the vehicle, but Joseph said he wanted the status of his license first (later it was determined that Joseph had a fake Florida driver’s license). Handler said it was valid, but handler was prepared to arrest him for providing false information to a police officer (apparently based on the warrant). Joseph then refused consent for a search.
Handler told Figaro he was going to have his K9 sniff the vehicle and all occupants were removed. K9 alerted and Figaro claimed they had smoked weed about 2 hours ago and the wrapper was in the cup holder which Joseph retrieved for handler. There was an engine in the cargo bay as both had talked about and there was also a firearm, ballistic vest and ammo. Figaro then made incriminating statements after Miranda.
During the suppression hearing, the hearing officer tried to interject racial bias by asking handler about how people of color looked when they were nervous. The hearing officer then commenced his decision with a discussion of the “Stanford Open Policing Project” and racial disparity in policing, noting that he was “unable to ignore that race and implicit bias may be a consideration in the initiation of traffic stops and a law enforcement officer’s decision to perform a warrantless search of a vehicle,” adding that he was “mindful of these issues” in his evaluation of the instant case. The hearing officer then granted the motion to suppress based on unconstitutional prolongation of the traffic investigation and no reasonable suspicion of other crimes.
In the appeal, the government argued that the stop was not prolonged in fact, but if it was, that was because there was reasonable suspicion to prolong the stop for the K9 sniff.
The appellate court noted at the outset that the entire stop was ongoing for 50 minutes before handler decided to have his K9 sniff the vehicle. Therefore, the court only addressed whether there was sufficient reasonable suspicion to justify the prolongation of the stop. Even though Joseph presented a fake license, handler did not arrest him for that. Instead, he asked for consent twice which was refused. At that point, handler said he was going to have his K9 sniff the car, but went back to the patrol vehicle and spent an unspecified amount of time “collecting his thoughts.” The appellate court held that once handler decided to deploy the K9, this was an unconstitutional prolongation because there was no reasonable suspicion of additional crimes.
Note: The government was concerned about the racial overtones in the hearing at the trial court level. The appellate court indicated that the study referenced by the hearing officer was valid but the hearing officer improperly interjected those studies and the issue of racial bias sua sponte (on the court’s motion). The appellate court stressed that a hearing officer need not ignore that race and implicit bias may be a consideration in the initiation of traffic stops and a law enforcement officer’s decision to perform a warrantless search; rather, a trial justice should address those considerations when they are argued and raised by defense counsel to support a motion to suppress. Here, there was no argument by defense that there was a racial element in the case. They made no claim of racial animus or selective prosecution at the suppression hearing, and counsel candidly acknowledged that racial bias was not an issue in this case. Therefore, there was no validly raised racial issue.
We’re going to see this type of thing continue to crop up. While it’s good that unconscious biases are being recognized for what they are, it is possible to go beyond that and determine that there is racial bias when there isn’t. The appellate court validly said that when a trial justice considers and rules on an issue sua sponte, the parties must be afforded notice of the issue and allowed an opportunity to present evidence and argue against it. This didn’t happen here; it appears the hearing officer was just trying to make a record for his own benefit (at least that’s how I saw it).
Adams v. City of Cedar Rapids (8th Cir. Iowa 2023) 2023 U.S. App. LEXIS 18695
Excessive Force; Qualified Immunity
After a convenience store burglary, LE was looking for suspects. About an hour later, they saw a Mazda parked within a mile of the store. As they approached it took off and LE pursued it until it crashed into a tree. Five males ran from the wrecked car. LE was able to arrest one passenger who had a firearm. He gave the identities of two others, who LE knew often carried guns. K9 units were dispatched to search for the two missing occupants.
Three warnings re: K9s were given over the patrol car’s PA system in three different places. One K9 alerted to fresh odor and was allowed to follow that track. He alerted on a metal trailer in the back yard of a residence that was in the same general area of the warnings but at least a block away. The suspect was last spotted about 191 feet away from the trailer. K9 then spotted the suspect under the trailer and bit him. He was arrested and treated for his wounds with antibiotic ointment and released. His mother, Adams, sued.
The issue was whether adequate warnings were given. A public official is entitled to qualified immunity unless (1) the official violated a statutory or constitutional right and (2) the right was ‘clearly established’ at the time of the challenged conduct. There was no dispute that no warnings were given when the K9 was actually deployed or when K9 alerted to fresh odor. Suspect claimed he heard no warnings. A teenager on a roof about 40-50 feet from where suspect was hiding said he heard the warnings. Taking the facts most favorably to suspect, the court held that there was a genuine dispute as to whether suspect did not hear the warnings and did not have an opportunity to surrender. That meant the court had to address the second prong; whether the right to a warning was clearly established at the time of the challenged conduct. The court held that the right to a warning and an opportunity to surrender was clearly established and therefore the case would go foward on that issue.
Note: The court noted that there may be a situation that poses a risk to an officer such that a warning would put the officer in danger. However, it held it was also a question for the jury because there was a sufficient dispute in this case for it to go to a jury.
Rush v. State (Georgia 2023) 2023 Ga. App. LEXIS 371
Traffic Stop; Prolonged Detention
LE received a tip that detailed a vehicle involved in drug activity. LE observed the vehicle and followed it. Handler was asked to join and pull the suspect vehicle over. LE relayed that he thought a headlight was broken but told handler to get his own traffic infraction for the stop. Handler caught up with the vehicle and observed it did not have headlights on even though it was raining. There was a bit of a delay in stopping and handler observed that driver and only occupant (Rush) was moving around near the center console and continued moving around until the vehicle actually stopped. This was concerning as handler knew that drug traffickers often were armed with firearms. Handler contacted Rush and had him exit for a Terry frisk. There was a bulge in his front pants pocket and after manipulating it, handler determined it was methamphetamine.
Back up arrived and handler asked that officer to run Rush’s information. While waiting for the information to come back, handler saw signs of drug intoxication. He then conducted a free air sniff, all of which happened while still waiting for the information to come back and within 5 minutes of the stop. The K9 alerted on the car and methamphetamine was found in the center console and a firearm in the trunk. The stuff in his pocket was meth as well.
Rush filed a motion to suppress. The body cams of the officer and handler were played for the trial court which confirmed all the above facts and the court found that the stop was valid. The court then moved onto the prolongation argument. The initial request to exit the car was based on officer safety and the facts prior to the stop. Then the K9 sniff took place during the traffic investigation because the necessary information was still being retrieved.
Finally, the subjective intent of the officers was irrelevant (the drug investigation) since there was independant reasonable suspicion for the stop.
Note: No new law here but a great team effort by all involved. Interestingly, the manipulation of the bulge in Rush’s pocket was not challenged. Generally, plain feel is when LE recognizes right away what the object is and that it is an illegal items or an item used in illegal behavior.
Ross v. United States (6th Cir. Ohio 2023) 2023 U.S. App. LEXIS 18848
Traffic Stop; Reliability Foundation
Ross was stopped for window tint and turn signal violation. Ross was nervous and avoided eye contact. Ross was directed out and consented to a Terry frisk. As Ross was being detained in a cruiser, a K9 team arrived and sniffed the vehicle. The K9 alerted to the vehicle. A large cache of fentanyl was found.
Ross was convicted and appealed, claiming that his trial attorney neglected to challenged the K9’s qualifications for reliability. The bar to proving ineffective assistance of counsel is a high one and Ross did not meet it.
The appellate court held that the suppression hearing transcript showed that the K9’s trainer discussed the K9’s qualifications. The trainer described the initial training as a ten-week in-house program where the K9 is trained in narcotics area search, building search, evidence search, and tracking as well, and the apprehension work. Further, the trainer testified that the K9 are certified every year and undergo six hours of additional training every month. The trainer also confirmed that the K9 that sniffed Ross’s car was certified at the time of the stop and was still certified at the time of the hearing. This testimony was enough for the district court to establish probable cause. In these circumstances, no reasonable jurist could conclude that trial counsel performed deficiently by not asking for the K9’s physical certification, as the trainer’s testimony established the K9’s training and reliability. Moreover, because any other evidence that detracted from the K9’s reliability goes to the credibility of the dog rather than the admissibility of the evidence, Ross did not show a reasonable probability that the outcome of the suppression hearing would have been different had trial counsel noted the failure of the government to provide physical training records.
NOTE: This case illustrates the necessity of providing the appropriate documentation to prove the reliability of your K9. This is a foundational issue and should be a part of any court proceeding where your K9’s actions are introduced as evidence.
State v. Kinney (Ohio 2023) 2023-Ohio-2549
Traffic Stop; Prolonged Detention; Community Caretaking Function
LE saw a vehicle parked in an odd place so they stopped to investigate a possible collision or accident. A K9 team was called out about this time in the investigation. The vehicle had the wrong plate on it. LE was then concerned if the vehicle was stolen as well as a possible trespass on the right of way of the highway. The two occupants were unconscious and there was evidence of drug use. While the plate was being investigated, LE checked on the passengers. They could tell the Kinney was breathing but not sure about passenger. Kinney provided his information, but could not produce registration or insurance. Passenger, once roused, lied about her ID.
The K9 team arrived about this point (about 5 minutes after contact with the vehicle) so while the original officers were engaged in the vehicle investigation, the K9 sniffed the vehicle and alerted. This took a minute or two. Quite a bit of controlled substances were found in the car.
In his motion to suppress, Kinney did not contest the initial contact with the vehicle and himself based on LE’s community caretaking function. Therefore the court moved on to whether there was additional evidence resulting in additional reasonable suspicion and found that there was. The record contained numerous facts to justify the investigation of the vehicle up to and including the point when the K9 unit indicated the presence of drugs. Kinney does not challenge the search of the vehicle or seizure of evidence once the K9 unit arrived and the dog alerted officers to the presence of drug activity. His argument is solely based on his erroneous belief that the initial stop was unreasonably prolonged. The record clearly shows it was not.
Kinney has also not challenged the legality of the officers’ action in calling for the K9 unit, but the court noted that if a vehicle is lawfully detained, an officer does not need a reasonable suspicion of drug-related activity in order to request that a drug dog be brought to the scene or to conduct a dog sniff of the vehicle.
Note: The court held that seven minutes was not a prolonged detention and also indicated that there was additional reasonable suspicion that the car was stolen so this extended the time for the investigation. As to the prolonged detention, units of time is not the test; Rodriguez is clear that anything having to do with the K9 unit must be accomplished during the traffic investigation and not produce any delay. This court came round to the conclusion as well as finding additional reasonable suspicion. Keep in mind that even calling for the team can be considered delay if it delays the traffic investigation, even minimally, or if it does not happen until after the traffic investigation is complete.
United States v. Bible (6th Cir. Michigan 2023) 2023 U.S. App. LEXIS 18991 (Unpub.)
Traffic Stop; Prolonged Detention
Bible was a passenger in a Kia when it was stopped for an investigation into Bible’s suspected involvement in shootings and drug trafficking. LE also had a warrant for Bible’s DNA. In addition, the Kia’s window tint was too dark and the driver had run a red light. Thirty minutes or so later, LE started to serve the DNA warrant and a K9 team sniffed the Kia and alerted. There was a loaded gun and a digital scale with meth residue.
Bible claimed the 30 minute delay was unconstitutional. The testimony at the motion to suppress in the lower court demonstrated that Bible was associated with this car, that a tracker had been placed on this car to monitor Bible’s drug trafficking and that when LE stopped the Kia, occupants were ordered out at gunpoint because of Bible’s extensive history of gun possession. The search warrant for the DNA was not immediately executed because LE on scene were outnumbered by the occupants so it was not safe for an officer to go to the unmarked car and obtain the DNA materials. In addition, one of the the unmarked cars did not have a secured backseat. There was also difficulty in getting the traffic investigation off the ground as the undercover cars did not have a computer terminal in them. Ultimately, they had to wait for a squad car to arrive to use its computer. As LE was reading the warrant to Bible, the K9 team showed up. LE had pulled out the swabs for the DNA warrant but first directed Bible to the other side of the car to allow the K9 room to sniff. The swabbing for the warrant was completed prior to the alert. There was a gun and dope found in Bible’s bag which was still in the car.
The appellate court concluded that the traffic stop did not last longer than necessary to address the traffic violation and the execution of the DNA warrant. As described above, the police encountered unexpected delays in obtaining police backup, which was a safety issue, and in checking the driver’s license for the driver of the Kia. The K9 sniff was almost simultaneous with the execution of the DNA warrant. Even if the K9 had not alerted, the police search of Bible’s bag in the passenger compartment of the Kia would have been permissible to ensure the officers’ safety. Based on Bible’s prior criminal history, evidence regarding his suspected involvement in recent gang-related shootings, the informant’s statements regarding Bible’s practice of carrying a firearm, and Bible’s initial refusal to leave the vehicle, police possessed a reasonable belief based on specific and articulable facts that Bible was dangerous and could gain immediate control of a weapon.
Note: This court did not really address the Rodriguez argument of prolonged detention; instead, they held that since there were significant safety issues that had to wait for back up and the fact that the DNA warrant swab collection happened basically concurrently to the sniff and alert, there was no violation.
Jackson v. City of Santa Ana (California 2023) 2023 U.S. Dist. LEXIS 128725
LE saw a vehicle which was reported stolen during a recent first degree burglary. Two patrol cars approached the vehicle which was at a gas station. Jackson, the driver, took off on foot when he saw LE. LE gave chase but was unable to catch him. However, during the pursuit, LE observed Jackson holding his waistband. There was a switchblade on one of the passengers left at the gas station. Air support located Jackson hiding in a residential back yard which was dark and not well-lit. A perimeter was established around that residence.
A K9 team responded. While the handler was being briefed, air support said that Jackson had picked up an object and appeared to be attempting to conceal himself. Jackson was also moving toward the home as if he was trying to get in. In front of the home and while the helicopter was hovering over head, handler gave four K9 announcements, 2 in English and 2 in Spanish. Several minutes elapsed with no response. After searching the house, the helo said that there was a heat signature in the doghouse. LE then formed a plan for the K9 to apprehend and other officers to approach and secure Jackson. K9 searched for about 75 seconds in the backyard before the helo told ground troops that K9 appeared to be on the bite in the doghouse. Jackson was ordered to crawl out which he did and proned out as ordered. It took LE 8 seconds to physically get to Jackson and another 10 seconds to get him handcuffed. Handler took 4 seconds to get to Jackson and about 13 seconds to choke the K9 off. The bite was 37 seconds total. Injury to the leg was considered moderate in severity and that there were no functional defects to the leg. A trauma and plastic surgeon told Jackson that surgery was unnecessary and should let the injury heal on its own.
The court first held that these injuries were a relatively moderate intrusion on Jackson’s 4th Amendment interests. In addition, it appeared that there was no delay in getting to Jackson and getting the K9 off the bite once Jackson was secured. Finally, the wound healed on its own.
The Court next evaluated the City and handler’s interest in deploying K9 to find and bite Jackson. When evaluating the government’s interests in using force, the Court may consider any number of non-exclusive factors. Five factors are relevant here: (1) the severity of the crimes at issue, (2) whether Jackson posed an immediate threat to the officers or others’ safety, (3) whether Jackson was actively resisting or attempted to evade arrest by flight, (4) whether warnings were given, and (5) the availability of less intrusive alternatives of force. The second factor is the most important of the five. The first factor—the severity of the crimes at issue—weighs in LE’s favor. The officers suspected Jackson was involved in a recent burglary and had a stolen vehicle. Both crimes are felonies, and burglary is an inherently dangerous crime. The officers, including handler, thus had a strong and legitimate interest in apprehending Jackson. The officers also had good reason to suspect that Jackson was committing the misdemeanor crime of resisting arrest because he fled the scene and hid in a darkly lit backyard. These circumstances add additional weight in LE’s favor.
The second and most important factor—whether Jackson posed an immediate threat to the officers’ safety—also weighs in LE’s favor. Here, although Jackson did not act violently toward the officers, the officers had a reasonable belief that Jackson posed an immediate threat to their safety. The officers suspected that Jackson was involved in two felonies, one of which was inherently dangerous. The officers did not know whether Jackson was armed because he fled before he could be searched. To add to their concerns, the pursuing officers saw Jackson holding his waist and one of Jackson’s associates had a switchblade. Once he was in the backyard, the helicopter officer saw him pick up a large unidentified object. Given the backyard was darkly lit, Jackson had a strategic advantage over the officers to potentially ambush them and strike them with the unidentified object. From the officers’ perspective, it was reasonable for them to believe Jackson posed an immediate threat to their safety. Jackson’s reliance on his self-serving statement that he was not carrying a weapon does not create a genuine dispute. A threat must be viewed from the officers’ perspective, not that of the suspect. There is no evidence here to suggest that, from the officers’ perspective, they could have known Jackson did not possess a weapon.
The third factor—whether Jackson was actively resisting or attempting to evade arrest—likewise weighs in LE’s favor. Fleeing and hiding are acts that passively resist arrest. The evidence shows that Jackson fled on foot and took additional steps to evade the officers by hiding in a darkly lit backyard, eventually taking the drastic step of hiding in the doghouse.
Jackson now attempts to avoid summary judgment by arguing he was not actively resisting nor attempting to evade arrest because LE observed him come out of the doghouse before K9 was deployed. Jackson’s misleading and disingenuous recitation of the facts is not well taken. The helicopter video clearly shows Jackson was still hiding in the doghouse when K9 was deployed, and it was not until after K9 was biting him that he decided to exit the doghouse. Here, the Court may view this video evidence in the light depicted by the video because it blatantly contradicts Jackson’s self-serving assertions. No reasonable jury could find that Jackson was not resisting arrest by fleeing from the police and hiding in a darkly lit backyard.
The fourth factor—whether warnings were given—weighs in LE’s favor. Officer Kirkpatrick used a bullhorn to warn Jackson that if he did not surrender, K9 would be deployed to find and bite him. Officer Kirkpatrick issued four warnings, two in English and two in Spanish. Although these announcements were made from the front of the home with a helicopter hovering above, Officer Marshall confirmed he heard the warning, and Sergeant Gutierrez attests that the other officers along the perimeter of the home also heard them. Based on this information, handler had no reason to believe the warnings were inadequate and that Jackson did not hear them. That Jackson did not actually hear the announcements does not create a genuine dispute. As noted above, the reasonableness of handler’s actions must be judged from the perspective of a reasonable officer on scene. A reasonable officer would have believed the warnings were adequate because multiple officers confirmed they heard the warnings despite having been made from the front of the house with a helicopter hovering above.
The final factor—the availability of less intrusive means of force—does not weigh in favor or against LE. In considering this factor, the Court acknowledged that officers “are not required to use the least intrusive degree of force possible.” Jackson asserts in conclusory fashion that there is a genuine dispute about whether there were alternative methods available to officers for taking Jackson into custody. Apart from this conclusory assertion, Jackson fails to identify what the less intrusive means of force may be and fails to cite to any evidence to support the assertion. Summary judgment was granted for LE and handler.
Note: The first three factors are from the seminal excessive force case Graham v. Connor. The last two are California additions. This apprehension was well executed because the warnings were given in audible levels and there was a plan as to what to do once Jackson was subdued by the K9.
United States v. Williams (Iowa 2023) 2023 U.S. Dist. LEXIS 130902
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause
LE investigation showed that a confidential informant was in touch with Williams because Williams wanted CI to advance money towards methamphetamine that Williams was going to get from Arizona and drive it back to Iowa. CI did not participate but gave the information to LE along with a description of the sedan he was driving and that Williams was on his way to Arizona after leaving CI’s house. CI had participated in this type of scheme before. CI also indicated that Williams lived off Blairs Ferry Road in Cedar Rapids. A search warrant had been executed at that address before and previous investigation confirmed that the sedan CI described.
A records check showed that the sedan was now registered to a business Williams owned. An LPR showed that the sedan was east bound on I40 in New Mexico which is a consistent route from Arizona to Iowa. New Mexican LE were contacted and read in. NMLE ran a search on their LPRs and found that Williams was still on I40 and would pass NMLE’s position in about an hour.
Sure enough, Williams was spotted on I40 driving east. NMLE observed that Williams was following a commercial vehicle too closely, creating a safety issue. As NMLE followed behind Williams, Williams started to pass another truck but spotted LE and braked and pulled back behind the truck. NMLE stopped Williams. There were two officers on scene and they approached on either side of the sedan. Williams was the rear seat passenger. The driver was contacted and handed over the requested paperwork. One officer took the driver to his vehicle to start the citation. He entered information into his computer terminal and started the physical citation. During this, handler (the other officer on scene) got the passengers out and ran his K9 around the vehicle in a sniff. The K9 alerted. When questioned, driver said there was a personal amount of marijuana in the luggage in the trunk. However, driver said the sedan belonged to Williams so he could not consent to a search of the vehicle. Williams said the same thing about the luggage, but did not give consent to search the vehicle. The sedan was searched and 4 bundles of meth were found in the trunk liner.
The court quickly found that the basis for the stop was valid. The court then addressed the next issue raised by Williams, which was the validity of the CI’s information (the trial court found this information to be valid reasonable suspicion to stop the vehicle). The appellate court acknowledged that the CI’s tip must provide some minimal objective justification for making the stop; a very low burden. Here, the CI ID’d Williams, his house, his car, his direction of travel and his intentions regarding bringing meth back to Iowa. Some of this information was corroborated by LE’s previous knowledge of Williams and, of course, the sedan was on the eastbound interstate towards Iowa.
The court then addressed the prolonged detention issue. Williams claimed that the driver was being confrontational and asking about matters not related to the traffic stop. However, the court found that the officer’s questions did not prolong the stop more than an ordinary traffic stop would have taken. Officer indicated that his questioning is part of the traffic investigation and if the subject engages, then he talks further with them. Here, the questioning did not measurably extend the duration of the stop.
The court moved on to the validity of the sniff of the K9. Williams claimed three things: (1) the evidence did not support that the K9 was certified and thus the K9 was not reliable; (2) the K9’s alert did not differentiate between marijuana, a legal substance to possess under New Mexico law, and the three other narcotics to which the K9 could alert, and; (3) the K9 could not distinguish between marijuana and hemp, a legal substance to possess under federal law. There was an issue with whether there had been evidence admitted that the K9 was certified at the time of the alert. Therefore, the appellate court assumed that there was no certification presented. The handler testified, “Any dog that is not certified we do not allow out on the team.” This testimony was based on personal knowledge. There was also no evidence in the record that would refute the K9’s certification. Importantly, part of the purpose of testimony as to reliability is so a defendant has the opportunity to question the K-9’s certification or training. Defendant had such an opportunity here, but declined to do so. Though the Court might have expected the government to directly question handler or another witness regarding the K9’s reliability, and might have expected defense counsel to cross-examine handler about it, the Court does not conclude that the evidence is not sufficient to show reliability here.
The Court also agreed the K9’s alert provides probable cause to search despite not differentiating between marijuana and the three other narcotics the K9 is trained to smell. The fact that the marijuana in defendant’s vehicle could be lawfully possessed under New Mexico law is inconsequential to the analysis of probable cause under federal law. Under federal law, marijuana is still a controlled substance. Accordingly, whether the K9 sniffed marijuana or one of the three other narcotics, any result created probable cause to search defendant’s vehicle. Thus, the K9’s failure to discern amongst the four drugs does not prevent a finding of probable cause.
Finally, the appellate court addressed Williams’ hemp argument, raised in Williams’ supplemental briefing. Defendant argues that because hemp is no longer a controlled substance under federal law, and K9s cannot distinguish between marijuana and hemp, the K9’s alert cannot support probable cause. As a preliminary matter, defendant’s argument assumes that the K9 alerted for marijuana. In hindsight, given what officers located in defendant’s car, it is probable that the K9 alerted to both marijuana and methamphetamine—though any combination or even another substance could have been the reason for the alert. Nevertheless, without evidence showing what caused the alert, the Court analyzes defendant’s argument as if the K9 alerted to marijuana only. Because it was suspected that the car contained methamphetamine, a reasonably prudent person would look at the facts and circumstances and believe that contraband would be found in defendant’s vehicle. For these reasons, the K-9 sniff was reliable and, in light of the facts and circumstances, provided probable cause to search defendant’s vehicle.
Note: This court virtually destroys the marijuana defense argument: If hemp is legal and hemp smells like marijuana, defendant gets a get out of jail free card. Nope. K9 was trained on the four scents, including marijuana, and there was good information that methamphetamine would be in the car. Therefore, that argument is invalid.
United States v. Castaneda (5th Cir. Texas 2023) 2023 U.S. App. LEXIS 19154
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Collective Knowledge Doctrine
Castaneda was pulled over for a “flapping” paper license plate (not properly secured). Castaneda was also under investigation for drug trafficking. Just prior to the stop, LE saw Castaneda enter a suspected drug house with a lunch box and leave within 10 minutes with the same lunchbox. That detective informed LE of the investigation and asked for LE to stop Castaneda when he observed a violation. When stopped, Castaneda gave inconsistent and untruthful stories about where he had been coming from. In addition, Castaneda’s driver’s license was invalid, and his driver’s license had been suspended due to his failure to complete a drug-education program. Castaneda also was pretty visibly nervous, jittery, avoided eye contact, and couldn’t sit still. The court held that LE had developed reasonable suspicion of additional criminal activity that justified extending the stop to wait for the K9 team.
Castaneda then complained that the K9 sniff illegally became a search because the handler illegally prompted the K9 to put her nose through the open window of the vehicle. However, the court did not reach that issue because the handler testified that the K9 had alerted to the car prior to the K9 put her nose in the window. Therefore, probable cause was established before the K9 put her nose in the window.
Note: There is little in the way of facts as this court basically affirmed the lower court. However, it demonstrates the necessity of watching your K9 throughout the sniff and noting where the K9 performs alert behaviors prior to an actual final indication.
United States v. Christie (Tennessee 2023) 2023 U.S. Dist. LEXIS 129172
Traffic Stop: Prolonged Detention; Reasonable Suspicion
Christie was stopped for following too closely on the Interstate which is a drug corridor. Newland was a passenger. The officer pulling them over was extensively trained in drug interdiction and the signs that someone is either carrying drugs or money related to drugs. When Christie passed by the patrol car, he tried to hide his face behind the B pillar of the vehicle. LE pulled out and activated its lights (the car was unmarked). Christie pulled over in a triangle of an exit which was not terribly safe. LE parked in front of him for their safety. LE approached the passenger side and back up was looking on. There were scent trees in odd places like the gearshift.
LE asked Christie for appropriate paperwork and noted that Christie had a Massachusetts driver’s license and the car had Pennsylvania plates. Christie could not produce registration or insurance, claiming the car belonged to a cousin. Christie and passenger contacted the owner by cell phone and were able to find the documents. LE noted that Christie was shaking at this point. At that point, LE directed Christie out of the vehicle and back to the patrol car. Christie was Terry frisked with no results. LE then questioned Christie about his travels. (Back up officer was called away at that point). The story was odd so LE put Christie in his car with Christie’s consent (it was safer for Christie as well due to the area in which he stopped). LE then went back to the passenger and the travel stories basically matched. LE then asked Christie what was in the car and he did not directly deny that methamphetamine was in the car, although he denied all else. At this point, LE called for a K9 team. The team arrived, sniffed and alerted. Found was over 7 pounds of meth, a large amount of cash, and 6 firearms.
Christie filed a motion to suppress claiming prolonged detention (he claimed other stuff not relevant here). The court reviewed the video exhibits of the traffic stop and noted some factual inaccuracies. The court didn’t have much of a problem with it, so dismissed that objection from Christie.
The court then went on to determine if LE had reasonable suspicion of other crimes (drug trafficking) to extend the traffic investigation to include a drug investigation. After reviewing the record, the court determined that LE had reasonable suspicion that criminal activity was afoot sufficient to legally extend the stop. LE testified to his extensive training on a number of “indicators” of potential illegal activity. And a number of these indicators were present from the beginning of this interaction. First, LE encountered Christie on Interstate 640—a known drug corridor—during a high-traffic time when drug traffickers like to travel. Second, LE credibly testified that he observed Christie tuck behind the B pillar of the vehicle when he saw LE’s unmarked patrol car I640, suggesting an attempt to hide his face from officers. Third, upon approaching the vehicle, LE saw scent-masking agents, which LE knew to be a common method of masking the smell of narcotics, in an unusual spot in the vehicle.
Further conversations with and observations of Christie and passenger heightened LE’s suspicion. Christie was driving in Tennessee using a driver’s license from Massachusetts. And he was driving a vehicle with Pennsylvania license plates. This further aroused LE’s suspicions because, through his training, he knew that drug traffickers frequently use third-party vehicles to traffic drugs. And LE credibly testified, and body camera footage confirmed, that he observed Christie’s trembling hands while holding his paperwork and on the phone. Christie’s hands trembled even after LE told Christie he would likely just receive a warning, suggesting that there may be more than a potential traffic violation at issue. The passenger in the vehicle was “looking in the rearview mirror kind of concerned about the whereabouts of the second officer on the scene, which LE’s training suggests is an indicator of potential illegal activity. Notably, LE made these observations even before Christie exited the vehicle. Considering the totality of the circumstances, these combined factors establish reasonable suspicion that criminal activity was afoot.
LE’s suspicion only grew as he questioned Christie outside of the vehicle. Christie told LE that the purported owner of the vehicle Christie was driving with Pennsylvania plates was Christie’s cousin in Atlanta, Georgia. The information Christie provided regarding how, and how well, he knew passenger did not add up. And Christie struggled to provide details of his and passenger’s shared travel. When asked about the contents of the vehicle, Christie failed to maintain eye contact, suggesting a falsehood; failed to directly answer LE’s question regarding methamphetamine in the vehicle; and his eyes widened when LE asked him about the presence of firearms in the vehicle. LE testified that, based on his training and experience, these reactions would indicate that illegal contraband is present in the vehicle. Looking at the totality of the circumstances, LE had reasonable suspicion that Christie was engaged in criminal activity. The motion to suppress was denied.
Note: It’s always interesting to see what a particular court is going to find reasonable suspicion based on the facts before them. Here, the travel stories pretty much matched, although there were some questionable answers. In addition, nervousness seems to be considered suspicious about 50% of the time. Here, it was determined to be a factor in reasonable suspicion. Finally, the physical reactions of Christie when being questioned by LE were somewhat run-of-the-mill, but this court said that all of this taken together was sufficient. It’s good to keep up to date on your jurisdiction’s standards.
State v. Kumuhone (Ohio 2023) 2023-Ohio-2586
Traffic Stop; Alert as Probable Cause
Handler saw a vehicle driven by a driver whose license was suspended in which Kumuhone was a passenger. Handler confirmed that status prior to the traffic stop. Once the car was stopped, another officer (LE) arrived as back up. Handler approached the passenger side and saw that the driver was very nervous; shaking and sweating. Handler knew that Kumuhoe’s residence was known for drug activity. Based on these things, handler told them he was going to have his K9 sniff the car. Handler directed them out of the car and then had the K9 sniff the car. Driver had a warrant so he was arrested and put in a patrol car. K9 alerted to the vehicle. A search of the vehicle revealed a backpack with a combination lock. As handler could not get into the backpack, he removed it from the vehicle, took it a distance away and had his K9 sniff it. K9 alerted again by lying down on the backpack.
LE used bolt cutters to get into the backpack and found methamphetamine. There was no contraband in the car other then this methamphetamine.
Kumuhone argued that LE should have obtained a warrant prior to opening the back pack. The federal appellate court held that based on the automobile exception to a warrant, the bookbag was fair game as the exception is extended to all parts of the vehicle and its contents that may conceal the object of the search.
Note: As this was a motion to suppress that was appealed, there is no indication why they charged Kumuhone with the methamphetamine, but I’m assuming there was indicia in the backpack that implicated him. This is a good reminder that when you seize drugs in a container with indicia, you need to seize the container and all its contents so that the jury can see that defendant’s CDL/keys/gym membership card/etc. were in the backpack.
State v. Li (Rhode Island 2023) 2023 R.I. LEXIS 90
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause; Reasonable Suspicion
Vehicle stopped because the front seat passenger was not seat belted. The driver was Li and the passenger was Kuang. Once LE caught up to the car, Kuang looked at the cruiser and put his seat belt on. LE pulled the car over. LE asked for license, registration and insurance, which Li provided. Li said the car belonged to Kuang’s uncle. Li said they were going to Boston for a couple of hours and would be driving back to New York later. Kuang was sleeping because of the long drive from New York to Boston.
Li was getting nervous and displaying signs physically, such as his neck pulsing, chest pounding and sweating even though it was mild out. Kuang’s chest was pounding as well. LE then detected a slight odor of marijuana coming from the vehicle. Li was directed back to the cruiser for more questioning and checking of documents. LE learned all the documents for both occupants were valid.
LE asked about controlled substances and guns in the vehicle. After a “target glance” at the vehicle, Li denied all. LE then called for a K9 team. They arrived shortly thereafter. LE then had Kuang step out of the vehicle. At that point, LE smelled the odor of fresh marijuana coming from Kuang’s clothes. The K9 sniffed and alerted.
LE then opened the trunk of the vehicle and there were 94 1# bags of marijuana. Kuang was in possession of $6,100 in cash.
The trial court granted the occupants’ motion to suppress. The government appealed. The appellate court held that the trial court misinterpreted Mimms and its progeny when it held that LE was unlawfully prolonging the stop when he asked Li back to his cruiser because LE could not articulate any safety reason for this action. The appellate court held that there was no requirement that LE have a fear for their safety in removing occupants from a car. They are entitled to do that regardless of reasoning. In addition, the appellate court held that LE had reasonable suspicion for additional crimes at that point anyway. The occupants’ overly nervous behavior, the fact that they were on a drug corridor,
The appellate court acknowledged that the Rhode Island courts have yet to address how the odor of marijuana affects reasonable suspicion or probable cause determinations in light of decriminalization and legalization of personal amounts of marijuana (1 oz.). However, the legalization of a small personal amount does not mean that possession of more than that is legal. In fact, there are specific instances where marijuana is legal, but there are more where the possession of marijuana is not legal. The decriminalization and legalization acts in Rhode Island do not support occupants’ position that LE should be limited in their ability to investigate marijuana offenses, or be subjected to a heightened reasonable-suspicion standard when investigating possible marijuana offenses. The plain language of these acts reflects the General Assembly’s clear intent to criminalize an individual’s possession of more than one ounce of marijuana for recreational purposes. Accordingly, the appellate court rejected occupants’ position that LE may not rely upon the odor of marijuana, with no other facts indicating quantity, to establish reasonable suspicion. Such a standard would be impracticable to impose on LE and their K9s, who are specifically trained to identify the presence of scheduled narcotics through scent, regardless of quantity. Thus, for these reasons, it was the court’s opinion that the odor of raw or fresh marijuana, standing alone, remains a factor to be considered in a totality of the circumstances, reasonable suspicion of criminal activity analysis because possession of marijuana by an individual that exceeds the amounts permitted by statute remains a crime subject to arrest and prosecution.
The court then moved on to the prolongation argument. In this case, LE here testified during the suppression hearing that, within minutes of the initial stop, he observed occupants’ abnormal and increasingly nervous behavior. Specifically, LE testified that Li grew increasingly nervous and that he could visibly see Li’s chest pounding and sweat beginning to appear on his forehead and just above his eyebrows. Interestingly, according to LE, Li was fine when he made the initial approach to the vehicle but, soon thereafter, LE could see Li’s increasing nervousness. LE testified that, in his experience, Li’s nervousness was above where someone is nervous because they were stopped for the passenger not wearing a seatbelt. LE also testified that Kuang became increasingly nervous and that he could recall observing Kuang’s chest pound as well. It was soon after observing occupants’ abnormal nervousness that LE also noticed the slight odor of marijuana emanating from the vehicle. These observations were coupled with occupants having stated that they were traveling from New York to Boston to visit a friend for only a couple of hours, and would be traveling back to New York the same day. Finally, LE testified that the vehicle had New York plates and that the route where defendants were pulled over had a very common history of narcotic trafficking.
Considering the situation as a whole, and affording LE’s decade-plus of law enforcement experience due deference, the court was satisfied that the facts and circumstances identified above were sufficiently specific and articulable for LE to have developed reasonable suspicion that criminal activity was afoot, justifying the prolongation of the stop. While it was acknowledged that occupants’ nervousness and their route of travel on a public highway were not strong indicators of criminal activity in and of themselves, when considering the totality of the circumstances from the vantage point of an experienced police officer, occupants’ abnormal nervousness and route of travel of short duration, coupled with the odor of marijuana, could very well create a reasonable suspicion that the occupants were engaged in some sort of criminal activity. Additionally, LE’s conduct was reasonably responsive to the circumstances justifying the stop in the first place, as augmented by information gathered during the stop, and that LE diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly.
The court overturned the trial court’s ruling and denied the motion to suppress.
Note: This trial court was way off the mark and based his/her ruling on erroneous factors and bad analysis. If this happens, the best thing to do is appeal. This worked out well for LE here as the trial prosecutor put together a record that the appellate court could work with.
State v. Heath (Ohio 2023) 2023-Ohio-2647
Traffic Stop; Prolonged Detention; Reasonable Suspicion
Heath was stopped for having his windows tinted. During initial contact, Heath had bloodshot and red eyes, his hands were shaking and he was nervous. After LE collected the appropriate documents from Heath, LE returned to his vehicle and ran Heath’s license through the LE database. At the same time, LE requested a K9 team. The rest of the information checked so LE used his tint meter to confirm the tint was too dark. LE then asked if there was anything illegal in the vehicle; Heath looked down and said no. LE asked that question because LE was familiar with Heath from his time as a narcotics detective and that his eyes were bloodshot. LE also testified that at the time of the traffic stop, there was an ongoing drug trafficking investigation of a house in the area. Although there was no information Heath had been at the suspected house, he was in the vicinity, and he had been observed stopping at a stop sign for longer than usual and sitting in his vehicle in a nearby gas station parking lot. LE and Heath then discussed what Heath could do with the illegal tint.
The K9 team arrived when the tint was being tested. The K9 alerted to the vehicle. Heath was searched and detained. The car was searched and a meth pipe was found.
Heath claimed that LE needed to have reasonable suspicion of additional crimes before a K9 team can be called out. The trial court bought this argument and granted the motion to suppress. The government appealed.
The appellate court held the initial stop was valid since the window were heavily tinted. The court then moved on to whether the stop was delayed impermissibly, using the Rodriguez standard. It found, based on the body camera footage, the stop only took a few minutes and the K9 sniff occurred before the traffic stop was completed and a citation issued. Therefore, there was no prolonged detention and therefore no unreasonable detention, the motion to suppress was denied.
Note: Heath and the court were concerned with the “pretextual” element here; there was a drug investigation and Heath appeared to have been targeted because of his tangential connection with a drug house. This court said that these facts were “perilously” close set of facts and reminded that LE must be vigilant in enforcing the laws within the limits of the law. This and K9 team were specifically within the law as outlined not only in the USSC, but in Ohio courts. I find the above “warning” a bit disengenuous because the trial court, not happy with the state of the law, imposed a requirement on LE that was not required by law. The Ohio courts should follow their own advice.