DECEMBER 2020 UPDATE FOR MEYER’S K9 LAW (Volume 1, No. 7)
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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from November of 2020. See Index of Reviewed Cases below. (A caution here: some cases are unpublished (Unpub.) so those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)
Also, I have addressed qualified immunity and how the courts apply this doctrine to law enforcement action. I hope it helps in understanding the doctrine and where the courts seem to be going with it.
If you are new to the website, thank you for becoming a member! Please feel free to browse through the previous updates. Each update has not only a review of the PSD relevant cases for the month, but often has an article that explores a specific issue in more depth. If you would like me to address a particular issue, please feel free to email, text or call me.
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. It is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update or any issues encountered during your duties.)
Marijuana Legalization Update
The New Jersey Senate recently approved a bill that would decriminalize the possession of up to six ounces of marijuana, amid criticism from lawmakers over how the measure both does not provide for the expungement of convictions and includes downgrading a charge for having so-called magic mushrooms. Although New Jersey voters recently approved the state’s adult-use cannabis referendum, the new program cannot succeed without first expanding the state’s medical marketplace, which is failing to meet existing demand due to an appellate stay on licensing, according to one attorney. It sounds like New Jersey marijuana law will remain in flux for the near future at least.
The Mississippi Supreme Court said Tuesday it will consider a petition challenging the validity of a successful ballot measure that legalized medical marijuana in the state this past Election Day, putting the future of the newly approved program, which had the overwhelming support of voters, in question. Also a state to keep on your radar; change is coming.
ARTICLE
Update on Qualified Immunity
As you might remember, I addressed the doctrine of “qualified immunity” in the July Update. This doctrine has been getting additional attention as the cries of “Defund the Police” as well as other criticisms of law enforcement use of force have been getting louder during the recent election cycle. Just to refresh: “Qualified immunity is an immunity from civil suit extended to police officers, administrators, and other public officials who are alleged to have violated the rights of a person while the official was performing a discretionary function of office, if the official’s conduct does not violate a clearly established statutory or constitutional right that would have been known to a reasonable person. To assert qualified immunity, the official must demonstrate either that the facts alleged by the plaintiff, when taken in the light most favorable to the plaintiff, do not amount to a violation of a right protected by the constitution or statute. Or, if a right might have been violated, the official must demonstrate that the right was not so clearly established that the law had not put the official on notice regarding the right so as to make a reasonable person in the official’s position aware that his or her conduct would clearly be unlawful.” Definition by Bouvier Law Dictionary of qualified immunity.
So what does that actually mean? While media pundits and civilians who believe they have been wronged by law enforcement (and we have seen cases in which constitutional rights have indeed been violated) have asserted this doctrine is a “get-out-of-jail-free card” for law enforcement, a further examination of this doctrine in our legal system shows that qualified immunity is appropriate and necessary to protect good-faith mistakes that are made by LE when looked at through a totality of the circumstances test. In other words, just as in Graham v. Connor (1989) 490 U.S. 386, “(t)he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id. at 396-397.
Let’s break it down further. “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes (2018) 584 U.S. ___, ___, 138 S. Ct. 1148 (holding that, if a constitutional violation occurred, LE had qualified immunity for shooting a subject when subject was holding a knife, was within striking distance of the victim and ignored commands to drop the knife). The first step in the “qualified immunity” analysis, therefore, is to determine whether a constitutional violation has actually occurred. In City of Los Angeles v. Heller (1986) 475 U.S. 796, a drunk driving arrestee was injured when he became belligerent and during the ensuing altercation when an officer tried to handcuff him, arrestee fell through a plate glass window. The jury found no constitutional violation had occurred under these acts. In Heller, the U.S. Supreme court affirmed that if no constitutional violation occurred, then the second step of qualified immunity does not need to be addressed. Heller, supra, at 799. That second step is for the court to determine that the constitutional violation was clearly established such that a reasonable person would have known that the actions violated the constitution. Therefore, qualified immunity analysis is a two pronged test: (1) a constitutional right or privilege was violated by a governmental officer and (2) the violated right was clearly established at the time of the objectionable conduct.
The analysis starts with whether there was a constitutional violation at all. In Plumhoff v. Rickard (2014) 572 U.S. 765, the Supreme Court addressed whether a constitutional violation occurred. In this case, subject led police officers on a high-speed car chase that came to a temporary halt when subject spun out into a parking lot. Subject resumed maneuvering his car, and as he continued to use the accelerator even though his bumper was flush against a patrol car, LE fired three shots into subject’s car. Subject managed to drive away, almost hitting an officer in the process. LE fired 12 more shots as subject sped away, striking subject and his passenger, both of whom died from some combination of gunshot wounds and injuries suffered when the car eventually crashed. The Supreme Court went back to Graham v. Conner test and stated:
“A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment’s “reasonableness” standard. See Graham v. Connor, 490 U. S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Tennessee v. Garner, 471 U. S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). In Graham, we held that determining the objective reasonableness of a particular seizure under the Fourth Amendment “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” 490 U. S., at 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (internal quotation marks omitted). The inquiry requires analyzing the totality of the circumstances.
“We analyze this question from the perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ibid. We thus “allo[w] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id., at 396-397, 109 S. Ct. 1865, 104 L. Ed. 2d 443.”
The Supreme Court held that this was not excessive force, given that the chase reached speeds of over 100 mph and put many other vehicles at grave risk. In addition, the subject was intent on evading LE and continuing his flight even after LE fired rounds at him. Therefore, the use of force and the level of force in this case did not violate the constitution. This should sound familiar; Graham v. Connor supplies the test LE uses in the field to determine whether force should be used and, if the answer is yes, how much force and what type of force is appropriate.
In Escondido v. Emmons (2019) 139 S. Ct. 500, the Supreme Court further explained how the first prong of the qualified immunity analysis should be considered. In Escondido, mother called 911 and said that her daughter was fighting with daughter’s female roommate. Mother reported that her daughter was yelling for help. LE was aware that in the recent past, victim complained that her husband injured her and a report was taken (husband not present). LE noted that children resided in the residence. LE responded to the 911 call and was able to make contact with the victim through a window. LE was able to make contact with the victim through a window, but she did not open the door as instructed. It was clear there was a male present in the home as LE heard a male voice telling victim to get away from the window. LE could not identify the male. LE was unaware of the status of the children. The male then came out of the house through the door, and contrary to LE instructions, shut the door behind him. LE stopped him, took him to the ground, handcuffed him and arrested him for misdemeanor resisting and delaying a police officer. Male turned out to be victim’s father. He was not injured but he sued LE for excessive force.
In ruling for LE in applying the doctrine of qualified immunity, the Supreme Court stated, “The U.S. Supreme Court has repeatedly told courts not to define clearly established law at a high level of generality. That is particularly important in excessive force cases. Specificity is especially important in the Fourth Amendment context, where the Supreme Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation the officer confronts. Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue. It does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness. An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Escondido v. Emmons (2019) 139 S. Ct. 500, 502. The Court went on, holding: “For qualified immunity in a [civil rights case], the U.S. Supreme Court has stressed the need to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment. While there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular action beyond debate. Of course, there can be the rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances. But a body of relevant case law is usually necessary to clearly establish the answer.” Supra. So the take away here is that the court can’t just say any force is excessive and then move on to whether the facts demonstrate the alleged violation was clearly established as unconstitutional.
So what happens when a constitutional violation is found to have occurred? The court then must determine if those actions taken by the handler that constitute the violation were clearly established at the time when the handler acted. In Saucier v. Katz (2001) 533 U.S. 194 (overruled on separate grounds, see below), the U.S. Supreme Court stated, “The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.” Saucier, supra, at 206. The Supreme Court goes on to state, “Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes ‘hazy border between excessive and acceptable force,’ (citation omitted), and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” “The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards.” Saucier, supra, at 208.
(The Supreme Court in Pearson v. Callahan (2009) 555 U.S. 223 overruled the part of Saucier that said the elements must be analyzed in a certain way, acknowledging the Saucier sequence (determining whether there was a constitutional violation first and then determining whether a clearly established right was violated) was often appropriate. Therefore, it was no longer to be regarded as mandatory and lower appellate courts were permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.)
The take-away then is, not that LE has a get-out-of-jail-free card, but that the courts have recognized there can be a very hazy line between what violates a constitutional right and what doesn’t. They have also recognized that there is no benefit is holding LE accountable for a violation that they reasonably did not believe they were committing. As the courts have said, it’s a balancing act: the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.
On November 5, 2020, the First District in the U.S. Court of Appeals decided Irish v. Fowler (Maine 2020) 2020 U.S. App. LEXIS 35054. On July 15, 2015, victim reported to Bangor Police that subject, a former lover, had kidnapped and raped her repeatedly on the night of July 14 at campsites near Benedicta. The report was referred to the Maine State Police (MSP). MSP Sergeant assigned it to two detectives (the defendants in this case) and told the detectives that the subject was a registered sex offender. It was also known by MSP that victim said that subject threatened to “cut her from ear to ear.” A couple of hours later, victim met with detectives and told them that she was afraid that subject would get “terribly violent” if he found out victim went to police. The detectives recommended not letting the subject know and to continue talking to subject as if nothing happened. Victim told detectives that she had moved her children to her mother’s house for safety. That same evening, detectives found corroborating evidence of the crimes at the campsite near Benedicta. The next day, victim gave another statement that subject had threatened to kill her, abduct and torture victim’s current boyfriend for information and then kill boyfriend and kill her. The detectives did not check the sex offender’s registry even though that would have been customary. If they had, they would have seen that subject was on probation and had an extensive history of domestic violence. They also did not contact subject’s probation officer. The day after this (2 days after the attack) detectives told victim that they intended to get a statement from subject for “his side.” Subject did not answer the phone, so the detectives left a message identifying themselves and for subject to call them back. The detectives did not try to locate subject, or arrest him at that time. During hearings, the detective admitted that it would be logical for subject to figure out police were contacting subject regarding the crimes committed. About 45 minutes later, a fire was reported burning in the barn of victim’s parents, which was about 15 feet from parent’s home (victim was sheltering there with her children). Victim also told detectives at this time that before the fire, subject had said “I am going to kill a fucker.
Detectives finally began to search for subject about four hours after leaving the message and put out a “stop and hold” along with a “caution” (indicating that subject was dangerous). Two MSP officers were sent to subject’s mother’s house about 40 minutes away. Victim was told by her brother that subject was irate about the message and said that “someone’s gonna die tonight.” She immediately relayed that threat to the detectives and asked for protection. Officers left and did not leave any personnel at the scene. In the next two hours, detectives contacted the probation officer and requested a criminal background check. Victim again asked for protection; the detective admitted that he understood her request to mean that she wanted a LE officer to protect her and her family sheltering at her parent’s house; but this request was ignored at this time. Instead, 4 officers went to subject’s uncle’s house (about 20 minutes away) to locate subject. About an hour later, detective told his superior about victim’s request for protection; superior said they would not provide protection because they did not have the manpower. About two hours after she requested protection, victim called again and was told for the first time that the supervisor had denied the request. Around that time, the two assigned detectives and two other officers met to search a dumpster for evidence of the original crime. After about an hour, law enforcement left the scene of the dumpster and the fire. No one told the victim that law enforcement left the area. About an hour after that, victim’s mother called the station and told them that she was coming down to the station with victim and victim’s boyfriend so they could be safe. MSP told her to stay put, that leaving the house could be a dangerous mistake and that MSP had officers in the area to respond quickly.
About a half hour after that, it was reported that a person attacked a driver with a hammer and robbed him of his truck and guns at a location about 12 minutes (6 miles) away from mom’s house. Within an hour of this report, subject drove up to mom’s house, shot the lock off the front door, striking victim in the arm, then kicked in the door. Subject then shot boyfriend 9 times, killing him. Victim ran into the bathroom with her mother; they were unable to lock the door, so mom boosted victim through the bathroom window. Victim took off running and mom was shot in the arm. Victim was able to jump in the bed of a passing pickup truck. Subject shot the driver in the neck, pulled victim out of the bed, and took her back to the stolen pickup and drove off. LE did not apprehend subject until about 9 hours after the shootings.
Evidence was introduced in the hearing that proper police practices indicated that the best time to contact a suspect is at the end of the investigation; that the victim’s safety is paramount and LE should not do anything that would put the victim in harm’s way; that in a sexual assault/kidnapping case, the first priority is to arrest suspect; and that to safeguard the victim, don’t tip off the suspect when he has already said he will harm her. In addition, running a criminal background check is considered essential and that under Maine law as well as the policy of the department, an officer is to immediately determine if the suspect had a domestic violence history; and immediately use all reasonable means to prevent further abuse, including remaining on scene for as the officer reasonably believes there is a physical danger to the victim without the presence of LE. Finally, LE is charged with assisting a domestic violence victim in alternative lodging for her safety.
At the trial court level, the court held that by leaving the voice mail, the police had violated the State-created danger doctrine (when the states creates a danger to an individual, an affirmative action duty on the state may arise). However, it held that this doctrine was not clearly settled law (the Circuit courts were on both sides of the fence about the actual doctrine) and therefore, even though there was unconstitutional action by the detectives, they were entitled to qualified immunity. The appellate court reversed, stating the factors the plaintiff must meet to make a state-created danger claim: 1) that a state actor(s) affirmatively acted to create or enhance a danger to the plaintiff; 2) that the act(s) created or enhanced a danger specific to the plaintiff and distinct from the danger to the general public; 3) that the act(s) caused plaintiff harm; and 4) that the state’s conduct, when viewed in total, shocks the conscious. To show deliberate indifference to meet the 4th factor, the plaintiff must, at a minimum, demonstrate that the state actually knew of a substantial risk of serious harm and disregarded that risk.
The appellate court agreed with the reasoning of the trial court and also found that LE’s actions caused a state-created danger. The appellate court then turned to qualified immunity; “The salient question…is whether the state of the law [at the time of the defendants’ conduct] gave [them] fair warning that their alleged treatment of [the plaintiffs] was unconstitutional.” See Hope v. Peizer (2002) 536 U.S. 730. “The relevant question is what a well-trained officer would have thought about the lawfulness of that action [at issue]. [O]fficials can still be on notice that their conduct violates established law even in novel circumstances.” Hope, supra, at 741; see also Taylor v. Riojas (2020) 2020 U.S. LEXIS 5193 at *2 (holding that qualified immunity should not be granted when “any reasonable officer should have realized that [the conduct at issue] offended the Constitution. In addition, “[t]he Supreme Court has established that cases involving materially similar facts are not necessary to a finding that the law was clearly established”) (one prong of the qualified immunity test). Even though the appellate court recognized that the Circuit courts were split on the doctrine of state-created dangers, it held that the widespread acceptance of the doctrine was sufficient to clearly establish that a state official may incur a duty to protect a plaintiff (here a crime victim) where the official creates or exacerbates a danger to the plaintiff.
Where does that leave you? Even if the specific facts of your case are not mirrored in a previous appellate case, this does not mean that you will be granted qualified immunity. If you know your actions are unconstitutional (and you are all reasonable officers with a good working knowledge of Graham v. Connor so your actions will be in line with the constitution), then you should be held liable. Given the temperature of the public and the politicians, you should be aware that qualified immunity will be scrutinized even more closely. The good news is, though, that the pundits who claim you are granted qualified immunity almost automatically are flat out wrong and are just fear mongering. The law comes down to this; reasonable behavior under established tests will be recognized as reasonable behavior. Be sure you document everything you do and be prepared to defend your actions in court. If you have any questions, please feel free to contact me.
INDEX OF REVIEWED CASES FROM NOVEMBER 2020
Jones v. State (Maryland) – Traffic Stop; Marijuana Odor as Probable Cause for Search
U.S. v. Lea (D.C. 2020) – Marijuana Consumption in a Public Place; Odor of Marijuana as Probable Cause; Search Incident to Arrest
State v. Henrichs (Arizona) – Traffic Stop; Prolonged Detention
Bates v. Smith (Kentucky) – Traffic Stop; Heck Doctrine
State v. Ghaznavi (New Jersey) – Controlled Delivery; Alert as Probable Cause
U.S. v. Talley – Traffic Stop; Possession of Marijuana in Closed Container; Good Faith Exception
U.S. v. Cannon – Traffic Stop; Smell of Marijuana as Probable Cause; Standing
People v. Beard – Traffic Stop; Prolonged Detention
N.J. v. Cooper – Vehicle Sniff; Reliability Foundation
Commonwealth v. Christensen – Consent; Odor of Marijuana as Probable Cause; Automobile Exception
United States v. Brundidge (Virginia 2020) – Odor of Marijuana as Probable Cause; Exigent Circumstances
Gipson v. Harris County (Texas 2020) 213470– Excessive Use of Force; Qualified Immunity
Gipson v. Harris County (Texas 2020) 209043 – Excessive Use of Force; Failure to Train; Failure to Supervise
O’Grady v. Garrigan (Wisconsin 2020) – School Sniffs; Vehicle Search; Alert as Probable Cause
Smith v. State (Maryland 2020) – Odor of Marijuana as Probable Cause
State v. Eustache (New Jersey 2020) – Odor of Marijuana as Probable Cause
Temple v. Cox (Georgia 2020) – Excessive Use of Force; Qualified Immunity; Accidental Bite
State v. Kelly (New Jersey 2020) – Detention; Sniff as Probable Cause; Protective Sweep; Reliability Foundation
State v. Taylor (Ohio 2020) – Traffic Stop; Odor of Marijuana as Probable Cause
People v. Peterson (California 2020) – PSD Scent Trailing Evidence; Reliability Foundation
U.S. v. Ruffin (Ohio 2020) – Alert as Probable Cause
REVIEWED CASES FROM NOVEMBER 2020
Jones v. State (Maryland 2020) 2020 Md. App. LEXIS 1139
Traffic Stop; Marijuana Odor as Probable Cause for Search
LE saw subject and knew subject did not possess a valid driver’s license. When subject parked, LE confirmed subject’s license was suspended. LE watched as subject drove away and then LE performed a traffic stop. As LE approached, they could smell the strong odor of marijuana coming from inside the vehicle. Subject told LE he had just smoked marijuana and showed them his ashtray. Subject was Terry frisked for weapons and LE felt a bulge in his pocket which turned out to be more than 10 grams of marijuana. A further search of the subject revealed 20 grams of cocaine.
The appellate court held that regardless of the validity of the Terry frisk, LE had probable cause to arrest subject for driving on a suspended license. Once arrested, LE has the right to search the person as well as the area within the control of the arrestee to remove any weapons or evidence that could be concealed or destroyed. United States v. Robinson (1973) 414 U.S. 218, 224. The court went on to confirm that the smell of marijuana alone does not provide LE with probable cause to arrest subject and perform a warrantless search of that subject pursuant to arrest.
Note: It should be noted that no contraband was found in the car, so that issue was not addressed here. Under Arizona v. Gant, the vehicle of a subject arrested cannot be searched pursuant to arrest unless there is reasonable suspicion that evidence of the crime will be found. Here, subject was arrested for driving suspended. The appellate court here makes clear that if the only other evidence was the odor of marijuana, there would be no reasonable suspicion to search the vehicle. Since the search of the subject here revealed over 10 grams of marijuana, making the possession illegal, the vehicle search would have been constitutional; the search would only be able to follow the finding of the contraband, however. There would have been problems in this fact situation because the cocaine was only found on the subject after the search of the vehicle.
U.S. v. Lea (D.C. 2020) 2020 U.S. App. LEXIS 37330
Marijuana Consumption in a Public Place; Odor of Marijuana as Probable Cause; Search Incident to Arrest
Subject was contacted by LE in a bus shelter because they smelled marijuana coming from subject’s vicinity and LE saw him smoking a joint (DC code makes smoking weed in public a misdemeanor). Once he admitted that he was smoking weed, a search of his person was valid because it was a lawful search incident to arrest.
Note: The District of Columbia, which has legalized personal possession of marijuana, prohibits smoking marijuana in public. This is a good example of using an illegal possession (personal possession with one more factor) of marijuana to open up probable cause for additional searching. However, if the illegal possession is only punishable by a civil fine, this will not create an arrestable offense and will probably not constitute probable cause for search.
State v. Henrichs (Arizona 2020) 2020 Ariz. App. Unpub. LEXIS 1250
Traffic Stop; Prolonged Detention
During early morning surveillance of a parking lot of a closed business known to be a “high-drug area”, LE saw the subject drive up to a subject on a bicycle. They conversed, but when they saw LE, they quickly parted ways, suggesting to LE that “something may be amiss”. LE called for back up and followed the vehicle to an open business, where subject parked and went into the business. Subject spoke to a person in the business for a few minutes and then came out and drove away. At that time, LE noticed that the vehicle did not have a license plate or license plate light. It had an illegible paper in the window that could have been a temporary permit, but LE could not read it. LE stopped the vehicle for these violations. Subject did not have proof of insurance when asked by LE. Subject was extremely nervous (more than normal), avoided eye contact, and his hands were shaking. Subject tried to reach into his pockets twice, despite being warned by LE, and LE performed a consent Terry frisk. No weapons or contraband were found. Subject initially denied his travels but admitted it after being confronted that LE was observing him. When asked about “marijuana, cocaine and heroin”, subject quickly denied possession. When asked about methamphetamine, subject hesitated and said no, but admitted to using a year or two ago. When asked to show his tongue, LE noted signed of recent meth use. The bicyclist and the employee were contacted and they told a different story as to the contact they had with subject. At this point, a PSD team was requested which arrived about 37 minutes later (after subject had been detained for approximately 15 minutes). PSD alerted quickly to the vehicle; search of vehicle revealed methamphetamine and indicia for use and sale.
Subject’s motion to suppress was denied. The appellate court held that the traffic stop was legally justified and that the stop was not unduly prolonged because the facts described above gave LE additional reasonable suspicion that additional crimes (possession, possession for sale) were afoot. Quoting Brown v. Texas (1979) 443 U.S. 47 at 52, the court noted that “(a) trained and experienced officer may be able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.”
Note: The Brown language is a good reminder that LE’s training and experience is critical. While it may feel boring and redundant to list your experience and training, it is important that the court understand that you have the requisite training and experience to draw the conclusions that add up to the court making a finding that innocent seeming behaviors, taken one by one, actually add up to additional reasonable suspicion. Keep those hero sheets up to date and make sure the prosecutor has an update copy.
Bates v. Smith (Kentucky 2020) 2020 U.S. Dist. LEXIS 220993
Traffic Stop; Heck Doctrine
Traffic stop by PSD team for turn signal violation. Handler initially thought that the vehicle was involved in drug activity because the vehicle was not registered in the county and the vehicle was being driven through an area that is a hotspot for drug activity. Subject was immediately irate and provided vague and inconsistent answers. Handler returned to cruiser to run license and registration and determined that subject had prior convictions (not described). Subject denied consent for PSD sniff. About 9 minutes into the stop, handler retrieved PSD and PSD alerted to the vehicle within a minute. Subject ordered out and patted down. Vehicle searched and contraband found, but had to be tested to determine that they contained illegal substances (later testing revealed heroin and fentanyl). Subject later pleaded guilty to trafficking, among other charges.
Subject then filed a civil rights action (Section 1983) for violation of his Fourth Amendment right to be free of unreasonable search and/or seizure. The court held that the Heck doctrine applied (“The Heck doctrine exists because the Court’s respect for ‘finality and consistency’ precludes a prisoner’s use of Section 1983 to collaterally attack an outstanding conviction.”) When the Heck doctrine is implicated, the subject had the burden to prove that the underlying conviction has been invalidated. Here, subject was serving a sentence for his convictions in this case and could not show that the convictions had been invalidated. Therefore, the Heck doctrine applied and the case was dismissed.
Note: Why would a subject file a civil rights case after conviction? Basically, it’s an attempted end run around the conviction; he’s hoping that the civil rights violation will be sustained so that he can go to the criminal court and use that finding to invalidate his criminal conviction. And that’s why Heck exists; the courts don’t like it when they are used against each other. Another reminder; it’s important that a finding of probable cause be made prior to dismissing a case so that a civil rights case won’t be successful.
State v. Ghaznavi (New Jersey 2020) 2020 N.J. Super. Unpub. LEXIS 2261
Controlled Delivery; Alert as Probable Cause
In an investigation of packages of controlled substances being shipped, a PSD’s positive alert is an especially significant intervening circumstance because it independently established probable cause to believe the package addressed to defendant’s wife at their shared residence contained controlled substances. See Florida v. Royer (1983) 460 U.S. 491, 506 (noting that had police used a trained PSD to sniff the defendant’s luggage, “a positive result would have resulted in his justifiable arrest on probable cause.”).
Note: Yet another case that confirms an alert by a properly trained PSD is probable cause for a search warrant to issue.
United States v. Talley (California 2020) 2020 U.S. Dist. LEXIS 106004
Traffic Stop; Possession of Marijuana in Closed Container; Good Faith Exception
Traffic stop for lane violation. While collecting license, registration and insurance, LE noticed a closed clear plastic tube that appeared to contain marijuana. The two occupants were ordered out and a search of the vehicle was done, finding a firearm, ammo and a cell phone. Driver was federally indicted for possession of the firearm and ammo by a felon.
Subject filed a motion to suppress, stating that the search of his vehicle by city police was unlawful because possession of less than an ounce of marijuana in a closed container is no longer illegal in California. The court found that California law no longer prohibits possession of under an ounce of marijuana in a closed container, even though federal law still prohibits possession of marijuana. The Ninth Circuit has held in previous cases that local police officers did not have probable cause based on alleged violations of federal law when local officers were, at the time, investigating a violation of state law. Particularly since California law states that legal possession of marijuana shall not constitute the basis for detention, search or arrest, the court held that the federal law cannot provide an alternative basis for probable cause in this situation because it would lead to the “paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce. (Citations). Moreover, practically speaking, to permit this end-run around California’s legalization scheme would grant state law enforcement officers carte blanche to disregard the Fourth Amendment rights of large numbers of California residents engaging in activity the state has deemed lawful.”
The court also addressed the good faith exception, holding that it did not apply as the state law making marijuana legal to possess in a small amount in a closed container had been the law since 2016 (although the Shumaker opinion which determined what was meant by “closed” container came out months after this search).
Note: It is apparent that the language by the drafters of Prop. 64 was calculated and specific to make sure that people who possess marijuana are not subject to detention or search (as well as arrest). The courts are now interpreting that language in the statute to mean that unless there is additional evidence apparent at the time that indicates additional crimes may be afoot, the presence of marijuana cannot lead to other things. This is different than the federal standard; however, given that the House of Representatives just passed a bill to de-schedule marijuana, this is a trend that will continue. (The bill is expected to die in the Senate and is also expected to be revived next year).
United States v. Cannon (Indiana 2020) 2020 U.S. Dist. LEXIS 218957
Traffic Stop; Smell of Marijuana as Probable Cause; Standing
Traffic stop for turn signal violation on a vehicle had just left a house that was under surveillance to serve an arrest warrant on a subject. Vehicle did not pull over for lights, but did when LE sounded siren. LE smelled burnt marijuana coming from the vehicle on both sides. A passenger admitted that he and some other occupants had smoked marijuana earlier in the day. A search of the vehicle revealed a scale, cash, and two handguns (one of which was stolen).
At the station, passenger said his nickname was T-Roy and that he knew nothing about the guns. He was confronted with Snapchat screen shots under the name T-Roy where a person who looked like him was selling handguns. Passenger then admitted he was helping a friend sell the weapons but did not admit to possession. Driver was issued a citation for the turn signal offense which was later dismissed.
The court first addressed standing and held that as a passenger, he may challenge the constitutionality of the stop. Secondly, the court held that LE had probable cause to stop the vehicle (the witnessed turn signal violation) by weighing the competing testimony and finding LE credible. Third, the court held that the dismissal of the traffic ticket for the driver was not relevant because for the purposes of finding the stop lawful, LE does not have to prove the traffic violation beyond a reasonable doubt; the standard for the stop is probable cause. Finally, the court held that LE had probable cause to search the vehicle based on the smell of marijuana which was reinforced by the admission by the passenger that he and others had smoked earlier. In addition, while the passenger can challenge the constitutionality of the stop, he does not have standing to challenge the search as he does not have a possessory interest in the vehicle.
Note: Standing is an interesting issue and should always be considered by the prosecutor as a theory to plead in a response to a suppression motion. Other states treat standing differently in this fact situation; in California, for example, a passenger does have standing to object to a search of the vehicle. However, if a container is opened, passenger would have to show a possessory interest in that container. Check with your local prosecutor on this issue of standing in your case. Also, this court talked about the traffic violation as probable cause to detain. It’s actually a reasonable suspicion standard for detention (see Terry v. Ohio). Finally, Indiana has not legalized marijuana.
Commonwealth v. Gibson (Pennsylvania 2020) 2020 Pa. Super. Unpub. LEXIS 3668
Traffic Stop; Plain Feel Doctrine; Odor of Marijuana as Probable Cause
Traffic stop for illegally tinted windows. While obtaining driver’s license, LE could smell fresh marijuana. Driver was shaking and breathing heavily. It took three requests to get driver to obey commands and he was argumentative. Driver “bladed” his body away from LE, turned back to the center console and reached in his waistband with both hands. LE grabbed driver’s arms and tried to pull them back. Bystanders started to advance on LE and back up was called, which arrived within 20 seconds, calming everyone down. A Terry frisk was performed and a pill bottle had 23 baggies of crack cocaine. Driver also had $2,061 in cash. The vehicle was searched and an additional 121 baggies of crack, packaging materials and a scale were found. Driver taken to jail where he said to LE, “You are going to wish you killed me” and threatened to get the officer “where it hurts and it will be sweet.” No marijuana was ever found.
The appellate court held that the seizure of the pill bottle was not legal, as it did not have a character that would immediately identify it by feel as contraband. Since the search of the vehicle was incident to arrest, the items found in the vehicle would be inadmissible. Since the lower court used the wrong standard for the search of the driver and the search of the vehicle (reasonable suspicion rather than probable cause), the case was remanded back to the trial court to address the claims of odor of marijuana in the face of no marijuana being found to determine if probable cause existed for the recovery of the pill bottle and later the evidence in the vehicle.
Note: Pennsylvania has not legalized recreational marijuana; however, in Commonwealth v. Barr, decided earlier in 2020, the court decided that the odor of marijuana no longer provides police with probable cause to search a vehicle because a number of Pennsylvania citizens can possess marijuana legally (for medical reasons). As it is pretty clear that the plain feel doctrine does not save the discovery of the pill bottle, it looks as though the case is headed down the drain.
People v. Beard (Illinois 2020) 2020 Ill. App. Unpub. LEXIS 1988
Traffic Stop; Prolonged Detention
LE saw several people in an alley near two vehicles. LE recognized one as a juvenile whose mother reported to LE he was using marijuana. Parties appeared startled by LE’s presence and jumped in the vehicles and drove away. LE believed that a drug transaction could have just occurred. LE followed one vehicle and noted that the driver was a person who was reportedly selling drugs at the high school. Traffic stop for speeding. Occupants were reaching around and bending over in the vehicle, appearing to be “messing with something.” Both were nervous and passenger volunteered that the speedometer wasn’t working, an interjection which LE thought was unusual. LE went back to his cruiser to start the citation and to call for a PSD team. This conversation took about 90 seconds. There was some confusion over the insurance coverage on the vehicle and LE ended up calling the insurance company to determine coverage (it was insured). PSD team showed up 20 minutes after being summoned and immediately performed an open air sniff, and PSD alerted to vehicle. LE admitted that he “could have” completed the citation prior to the open air sniff, but believed he did not delay the stop for the PSD team to arrive and conduct the sniff. LE also testified that he believed he had additional reasonable suspicion for additional drug crimes based on the facts above.
The appellate court found that LE had sufficient, reasonable suspicion to prolong the traffic stop to allow for the open air sniff.
Note: Nothing really new here, but a good reminder that all the information LE has about the situation should be put on the record for the court. Thorough reporting and thoughtful testimony are key to good results like this one.
State v. Cooper (New Jersey 2020) 2020 N.J. Super. Unpub. LEXIS 2250
Vehicle Sniff; Reliability Foundation
During the investigation of a drug dealer which included using a CI to buy from said dealer (transaction witnessed by LE), a search warrant issued. At the search warrant scene was a vehicle outside the residence. During the investigation, drug dealer was in and out of that vehicle, only remaining in the vehicle for a short period of time. A PSD team performed an open sniff of vehicle and PSD alerted. The vehicle was towed to a secure location still locked. A second warrant issued for the vehicle which revealed contraband including guns and ammo.
The appellate court held that the first search warrant was supported by ample probable cause based on the above investigation. In addition, in response to the attack on the reliability of the PSD, the court held there was no evidence to suggest the PSD was not trained or reliable.
Note: Not really any new ground here, but it is interesting that the court sort of blew past the whole reliability foundation issue. The standard is that the prosecution must establish a foundation of reliability for the PSD prior to evidence of an alert being considered. Here, the appellate court flipped the script and said since the defendant didn’t produce any evidence that the PSD was not trained and reliable, that issue was resolved in favor of the prosecution. I’m not sure why; maybe the court felt since it wasn’t brought up in the trial court, the appellate court didn’t have to consider the issue. Or maybe it felt that sending it back to the trial court for additional fact finding would just delay the inevitable. Who knows? But don’t think this means you can let down your guard about establishing a reliability foundation. You must make that record to have the alert survive in court, whether it be the trial court or the appellate courts.
Commonwealth v. Christensen (Pennsylvania 2020) 2020 Pa. Super. Unpub. 3582
Consent; Odor of Marijuana as Probable Cause; Automobile Exception
LE responded to a call from a bar that rented rooms above it. The complaint was that two persons who were not residents there were smoking marijuana. LE arrived and saw subject walking out the door carrying two bags. The caller pointed subject out as one of the smokers. LE could detect the odor of burnt marijuana coming from subject. Subject denied smoking marijuana and was heading to his car. Subject asked if LE could carry a bag for him and LE agreed but asked if he could search it. Subject consented. Nothing was found. LE then got consent to search the vehicle. Inside the vehicle, LE immediately noted the odor of fresh marijuana coming from inside the vehicle. There was nothing in the passenger compartment, so LE told subject he was going to search the trunk. Inside the trunk was marijuana, paraphernalia and other contraband.
Even though the Scott decision in 2019 held that the odor of burnt marijuana and a small amount of marijuana did not legally justify searching for additional contraband in the trunk of the vehicle, this court held that Scott was factually distinguishable from this case. In Scott, the odor of burnt marijuana emanated from the vehicle, whereas here, LE detected the odor of burnt marijuana on subject when he was outside of his vehicle. In Scott, LE discovered the source of the odor in the passenger compartment of Scott’s car. Here, LE encountered a new odor of unburnt marijuana in the vehicle, but did not discover its source. When LE in Scott decided to search the trunk, the suspicion that more contraband would be discovered had been significantly diminished by the prior discovery in the passenger compartment. Here, LE’s initial search fostered even more suspicion that contraband would be discovered in subject’s trunk.
The court also held that the automobile exception to a warrant was properly applied in this case. The parking lot where the vehicle was located was a public parking lot where bar patrons also parked. In addition, LE believed that subject was not even a resident in the rooms because the 911 caller had indicated he was not a resident.
Note: Again, nothing really new here, but the court made an interesting distinction. In the Scott case, there was no evidence, prior to the search of the trunk, that would indicate additional, illegal, marijuana would be found. In this case, the court pointed out that the distinction they used to uphold the search was a new and different odor of marijuana (burnt v. fresh). If you are asked for this distinction, be sure you can 1) actually make that distinction and 2) be prepared to discuss how you know the difference.
United States v. Brundidge (Virginia 2020) 2020 U.S. Dist. LEXIS 214831
Odor of Marijuana as Probable Cause; Exigent Circumstances
A “certified” confidential informant told LE that subject was located in a nearby apartment complex. Subject had several warrants out for his arrest. The apartment was placed under surveillance and LE saw a person matching subject’s description leaving the apartment. Subject was detained by LE and they smelled the odor of marijuana coming from subject’s person. In response to the arrest warrants and the odor of marijuana, LE searched subject and found cell phones, keys and cash. Subject advised that a 7 year old child was in the apartment alone. When LE opened the unlocked door to check on the child, they again smelled marijuana. A search warrant was issued and when served, LE found a gun, marijuana and cocaine.
The court held that the tip from the certified CI was corroborated (LE confirmed that subject lived in apartment prior to surveillance) and reliable, therefore giving LE reasonable suspicion to detain subject. Subject was then arrested on his warrants within two minutes (even though subject lied about his name). As a result, subject was searched pursuant to arrest and in response to the odor of marijuana. The court also held that the minimal entry to the apartment to check on the child was lawful under the theory of exigent circumstances.
Note: Virginia has not legalized recreational marijuana.
Gipson v. Harris County (Texas 2020) 2020 U.S. Dist. LEXIS 213470
Excessive Use of Force; Qualified Immunity
Subject was contacted by police when he was handing out business cards and was asked for identification. He refused to provide ID and walked away. LE called for back-up. LE followed subject to his home and demanded ID again. Subject again refused and locked the front door and the door to the bedroom he was in. LE broke down both doors, entered the bedroom with a PSD and tasered subject in the back who had his hands in the air. The taser caused subject to make an involuntary movement, which caused the PSD to bite subject on the arm several times. Subject was tasered again and then stepped on by LE (not handler). Charges of failing to provide ID and evading arrest were later dropped.
In this opinion, the court reviewed whether the actual officers present at the scene were liable under this Section 1983 action (civil rights violation). The court held that Texas law provides that, at the time of filing the lawsuit, the subject must choose between suing the agency or the individual. If the subject fails to make this election, then Texas law requires that the action must be dismissed against the individual. Therefore, in this case, subject elected to abandon his state claims against the individual LE officers and proceed only against the county and the Precinct. State claims were then dismissed by the court against the LE officers.
In addition, the officers had moved to dismiss the state claims against them under qualified immunity. (The court indicated that since subject did not dispute qualified immunity on the federal civil rights claim, subject had abandoned those claims). The test applied to determine whether qualified immunity is available is two-fold; 1) whether LE’s conduct violated a constitutional right and 2) whether that right was clearly established at that time. The court analyzed each LE officer separately. The officer who originally stopped subject did not follow subject but called for back up. Because he was not involved in the physical arrest of subject, the court determined that the matter should be dismissed against him. However, the two officers who effectuated the arrest were determined to not have qualified immunity (at least at this stage of the case). The test applied by the court was 1) subject suffered an injury that 2) resulted directly and only from the use of force that was excessive and that 3) the force was objectively unreasonable (Graham factors). Here, the court held that these claims will survive dismissal. Using a taser and a PSD against a detainee who is not actively resisting, does not have a weapon, and is not suspected of a serious offense constitutes a clearly established use of excessive force. The “crime” was failing to provide identification which was not a severe crime; there was no indication that subject was a threat to anyone’s safety or had a weapon; and while subject admitted that after he refused to provide identification, he walked home and locked himself in, there were no facts that indicated he was actively resisting arrest or attempting to flee when LE broke down two door and used a taser and a PSD on him.
Note: Apparently in Texas, there are some archaic rules of pleading a lawsuit against a governmental agency that make it difficult to sue the appropriate party. However, what stands out here is that in this motion for summary judgment, LE tasered this guy twice and PSD attacked and bit multiple times when subject was allegedly surrendered in his own house with his hands in the air and then face down on the ground. We don’t know the LE version of this situation yet as the court must resolved all disputes in favor of the subject in this type of a motion. Suffice it to say, though, if subject’s allegations are true, this was not a defensible bit. And it’s interesting to note that because of Texas law and some other issues, the only remaining parties in the lawsuit are the taser wielder and the handler. If they are found liable, there is no deep pocket agency to share the damages. It will have to be paid by the LE officers themselves. Not a good situation to find yourself in.
Gipson v. Harris County (Texas 2020) 2020 U.S. Dist. LEXIS 209043
Excessive Use of Force; Failure to Train; Failure to Supervise
Subject was contacted by police when he was handing out business cards and was asked for identification. He refused to provide ID and walked away. LE called for back-up. LE followed subject to his home and demanded ID again. Subject again refused and locked the front door and the door to the bedroom he was in. LE broke down both doors, entered the bedroom with a PSD and tasered subject in the back who had his hands in the air. The taser caused subject to make an involuntary movement, which caused the PSD to bite subject on the arm several times. Subject was tasered again and then stepped on by LE (not handler). Charges of failing to provide ID and evading arrest were later dropped.
Subject sued all LE involved, including agencies and supervisors, under Section 1983 for violation of his Fourth Amendment rights. This case addresses the motion by the Constable Precinct to dismiss a federal claim of failure to train, and state claims of negligent hiring, retention and supervision. The court held that the actual Constable, Rosen, was not actually involved in the events leading to the dismissed charges, and additional causes of action were not properly plea and he was not properly served. Therefore, the court interpreted any claims against Rosen as duplicative of claims against the county and the Precinct. The court then held that under Texas law, the Precinct is not an entity capable of being sued. Therefore, the Constable and his Precinct were dismissed from the case.
Note: See above.
O’Grady v. Garrigan (Wisconsin 2020) 2020 U.S. Dist. LEXIS 210952
School Sniffs; Vehicle Search; Alert as Probable Cause
Subject complains that PSD sniffs at a school violated his constitutional rights and that LE retaliated against him for objecting to the PSD school sniffs. The motions to dismiss brought by LE were granted as subject did not comply with the court’s procedures or plead any facts that would support his claims.
The school district had a student vehicles policy that student had to purchase and display permits if they wanted to park on district property. The policy also stated that vehicles parked on district property were subject to unannounced searches by school personnel or drug dogs. In addition, permission for a student to park on district property was conditioned upon written consent of the search of the vehicle and all containers therein by a school administrator with reasonable suspicion of violation of a law, school rule or a condition that endangers the safety and health of student driver or others. The policy also stats that the district administrator may request that law enforcement conduct drug searches with a drug dog. The student does not have to be present for any search of the student’s vehicle based on an indication by a drug dog.
In this case, this school issued permits with the condition that student vehicles parked on school property are subject to search without notice. By choosing to park a vehicle on school property, the student and/or their parents have given permission to search the vehicle by school personnel, police officers and/or their K9 officer.
Subject had three daughters enrolled at the school. Subject filled out a registration form so that one of his daughters could park in the school lot. In December of that school year, it was decided to have a PSD team sniff for drugs at the high school. During the sniff, the school would be placed on administrative hold, meaning that the students and staff were required to stay in their assigned classrooms. The hold lasted about one class period and there was no deviation from the regular schedule of classes. Lockers and vehicles were sniffed and where PSDs alerted, searches were performed. PSD alerted to subject’s daughter’s car. Daughter was located and asked to provide keys to search the vehicle. Daughter handed over the keys and made no objection to the search. She was then interviewed for about 10 minutes. Her sister was also interviewed for about 10 minutes. Both denied possessing or using drugs. No drugs or contraband were located in the vehicle. Subject arrived at the school to complain about the school lunch program where he quarreled with the dean of students.
Among the many causes of action alleged, one of them was that the search of his daughter’s vehicle was unconstitutional. The court held that the PSD’s alert provided probable cause to search the vehicle. Subject’s claims that the school district could not call in police to do searches was irrelevant because it is well settled law that police do not have to have any articulable reason to sniff vehicles if doing so does not otherwise invade a person’s legitimate interest in privacy and a drug sniff that occurs in a public space does not invade a legitimate expectation of privacy. And in this case, subject had consented to the search at the time the vehicle was registered to park at the school.
Note: School sniffs are rarely challenged because usually the school district has a policy in place that allows such sniffs, as did the district in this case. Good example of the district working with the police department to determine if any rules were being broken without impact to the students.
Smith v. State (Maryland 2020) 2020 Md. App. LEXIS 1084
Odor of Marijuana as Probable Cause
LE responded to a stop and rob convenience store regarding a complaint of robbery. Store was known as an open-air drug market. When LE arrived, their attention was drawn to three people huddled close together on the side of the market. One of them was Smith. LE smelled the odor of marijuana coming from the area in which they were huddled. One of them had a medium sized bag of marijuana, a scale and small plastic bags and all three were focused on those items. It appeared that he (not Smith) was preparing and packaging marijuana for illegal sales. It appeared to LE that these three were working as a team. As LE got close to them, they noticed LE and the dealer tossed the scale and marijuana over his shoulder. All three were arrested and searched. Smith claimed that LE lack sufficient facts to show he was in constructive possession of the marijuana and therefore wrongly arrested him.
The court held that LE had more than a hunch that Smith was violating the law. The strong odor of marijuana, the dealer in possession of marijuana, packaging and scales and Smith within inches of the dealer and the appearance to LE that they were working in concert indicated that LE had probable cause to believe that Smith was violating the law.
Note: Smith was found in possession of a handgun and was convicted of this crime. This is a good reminder that drugs and guns go hand in hand and that searches can easily turn into investigations of additional crimes. Maryland has legalized medicinal marijuana but not recreational (at least at the time of these crimes).
State v. Eustache (New Jersey 2020) 2020 N.J. Super. Unpub. LEXIS 2146
Odor of Marijuana as Probable Cause
LE responded to a call that a white SUV had pulled into the parking lot of a row of apartments and the occupants were causing a disturbance. The caller said the driver was a black male with dreadlocks and the passenger was a black male that possibly had a gun in his waistband. LE had been summoned there a week prior to a report of shot fired. LE located a white SUV in the parking lot with the windows down and the sunroof open. LE saw a suspect in the previous shooting standing outside the driver’s side and he matched the description of the driver given by the caller. Three others were sitting on an apartment porch about 25 feet away from the vehicle and LE was familiar with one of them (defendant in this criminal case) from previous encounters and had seen him driving the SUV before. The driver threw something toward the front driver’s side of the SUV and then started walking toward the other three people. All four were ordered to the rear of the vehicle to conduct Terry frisks. LE detected the strong odor of marijuana coming from the vehicle. LE also saw fireworks in plain view. A search of the vehicle revealed a fun, ammo, and a ski mask. LE continued to search for marijuana and found that it was right under the tire (presumably the item thrown by the driver). Defendant claimed that LE should have found the thrown marijuana first and therefore, would not have had a reason to search the vehicle and find the gun. The court held that in new Jersey, the smell of marijuana itself constitutes probable cause that a criminal offense has been committed and that additional contraband might be present. Therefore, the defendant’s argument was without merit.
Note: New Jersey recently voted in November of 2020 to legalize recreational marijuana; at the time of this investigation, marijuana was still illegal.
Temple v. Cox (Georgia 2020) 2020 U.S. Dist. LEXIS 208856
Excessive Use of Force; Qualified Immunity; Accidental Bite
During the execution of a search warrant, subject fled into the woods. Subject had been identified as a person who had sold controlled substances to a CI at this residence. PSD team immediately started tracking subject. Subject inadvertently ran toward another LE officer who detained him at gunpoint and handcuffed him. Handler then shouted to the arresting officer to watch out, and the arresting officer looked up to see PSD sprinting towards them, with his handler several yards behind. Arresting officer jumped out of the way of the oncoming PSD. Even though handler gave at least one recall command, PSD bit subject on the leg, resulting in a bad bite with chucks of flesh missing. Handler testified that PSD had a sudden burst of speed which broke his leash.
Subject sued for excessive use of force against handler and failure to intervene against arresting officer. The court analyzed whether qualified immunity would apply to either officer. AS to the handler, the court held that both prongs of the qualified immunity test had been satisfied. Handler was acting within the scope of his official duties while pursuing and apprehending subject and there was no clearly established right to be free from accidental application of force during arrest. The evidence showed that the leash broke and handler gave at least one recall command which the PSD ignored. As to the arresting officer, the court held the arresting officer had to be in a position to intervene. Here, even though the arresting officer was present, he was not a PSD handler and had no experience or knowledge to get the PSD to release, even though he was yelling at the handler to get the PSD to release. This indicated that the arresting officer took steps to intervene that were available to him. Therefore, qualified immunity applied to the arresting officer as well.
Note: Good analysis of accidental bite case. There was a bit of kerfluffle at the beginning of the opinion in which the subject argued that LE failed to preserve the broken leash in evidence. The court indicated that other evidence was available that convinced the court the leash was indeed broken, but in hindsight, it should have been booked into evidence.
State v. Kelly (New Jersey 2020) 2020 N.J. Super. Unpub. LEXIS 2105
Detention; Sniff as Probable Cause; Protective Sweep; Reliability Foundation
LE received a tip that two white males were parked in a Cadillac in an area known to be a high crime area and the passenger had a handgun in his lap. The tipster described the vehicle, its position and what both males were wearing. LE arrived to find a situation that matched the tipster’s information and that the Cadillac had heavily tinted windows. LE used the loudspeaker to instruct the driver to roll down his window. There was no response so the order was given again. This time, the driver rolled his window down partially. LE told driver to roll all the windows down, but driver just rolled his down all the way. Driver would not confirm if there was anyone else in the vehicle. LE could not see the driver’s right hand. Driver was instructed to exit with his hands up but he immediately shut the door when he got out. A Terry frisk revealed no weapons or contraband. Driver said car was his, then said it was his roommates’ but couldn’t tell LE her last name. Driver still evaded the question whether there were other occupants in the car. Driver was handcuffed and placed in a patrol car. Driver eventually said that another male was in the car. Passenger was ordered out, and he complied, leaving the passenger door open. He also was detained. In plain view was a syringe and a syringe cap. At that point, a PSD sniffed the vehicle and alerted. LE retrieved the syringe and also recovered a BB gun spotted when LE retrieved the syringe. Driver placed under arrest for the syringe. A search warrant was issued for the vehicle and 3 guns and a dagger were seized.
The court determined that LE attempted to contact the occupants but even when they shined their lights into the car, the tint was so heavy, the interior was obscured. LE then chose contact through the loudspeaker as it was almost 0300 and it was in a high crime area. The initial hailing and shining lights were not intrusive and objectively reasonable based on the circumstances. Once driver did not follow commands, LE was justified in removing occupants, similar to a traffic stop, given the tip and the other circumstances. Once driver and passenger exited, LE was able to confirm they were wearing the same clothing as described by the tipster. The confirmation of the tip was enough to allow for a Terry frisk and detention of both occupants for further investigation. Since it was unclear whether LE looked into the vehicle before the passenger got out, the court held that even if LE looked inside the car prior to passenger exiting, it was a valid protective sweep given the information that the passenger had a gun. By the time driver was arrested for the syringe, the PSD had already alerted, providing additional probable cause. The driver also challenged the reliability foundation of the PSD on appeal. The court held that since driver didn’t bring this up in the lower court, he couldn’t raise it now.
Note: Even though this appellate court gave the People a break on not proving up the PSD’s reliability foundation, this should not be taken as a green light that the People do not have to lay that foundation. The People should do this proactively, in their case in chief, not only to eliminate any appellate issues, but it is an opportunity to educate the jury about the PSD team and their qualifications. In addition, the prosecutor should be designating the handler as an expert; this tells the jury that the court believes the handler has had enough training and experience to be considered an expert in the field. Also, I’m not sure why a search warrant was sought; the automobile exception should have applied, but seeking that additional level of protection is always a good thing.
State v. Taylor (Ohio 2020) 2020 -Ohio-507
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for obstructed license plate stickers. Driver and the two occupants did not have a valid licenses. LE smelled the odor of marijuana during the contact. LE called for back up and then learned that driver had three outstanding warrants. Responding LE also smelled marijuana as LE searched the vehicle. Loose marijuana and ammo were found in the center console. LE observed a separation between the dashboard and center console, so LE removed the panel and found two magazines and a loaded pistol.
The court held that the traffic stop was constitutional under the laws of Ohio. The court also stated that the smell of marijuana alone was probable cause to search the vehicle.
Note: Ohio has permitted marijuana for specific medical reasons and has reduced the punishment on possession of a small amount to a misdemeanor without jail time. There was a dissenting opinion that disagreed with the majority on the issue of the scope of the search, but it was not well reasoned. In addition, LE probably could have relied on a search incident to arrest theory as well.
People v. Peterson (California 2020) 2020 Cal. LEXIS 5539
PSD Scent Trailing Evidence; Reliability Foundation
In this high-profile murder of Peterson’s wife and unborn child, dog tracking evidence was at issue (along with a lot of other issues that aren’t pertinent to PSD teams). After extensive testimony from and cross-examination of various dog handlers concerning their training, as well as their dogs’ training and past performance, the court excluded all PSD scent trailing evidence except for evidence of scent trailing at the Berkeley Marina (the prosecution’s theory was that defendant killed his pregnant wife and then used his boat to dump her body overboard). The admitted evidence was that four days after victim’s disappearance, handler provided PSD with a glasses case with victim’s glasses inside and then gave a trailing command. Handler did this with both entry points into the marina. On one entry point, PSD did not react but on the second entry point, PSD “lined out, pulled her harness line taut, with level head and taking (handler) from an area near the parking lot down one of the marina piers to a pylon on the pier where a boat could have been tied, then given (handler) an ‘end of trail’ signal.”
Using the Malgren factors as modified in the Jackson case, the court held that admitting evidence of PSD’s trailing defendant’s wife’s scent was proper because the record showed that the handler was sufficiently trained, that the PSD was sufficiently trained and reliable, that the PSD was properly given an initial scent, and that some evidence tended to corroborate the trailing. Other requirements and theories put forward by defendant were shot down. The court also held that even if the PSD trailing evidence was excluded, the verdict would not have been affected. There were also objections to the jury instructions used for this evidence which were rejected.
Note: This fairly lengthy opinion (the dog trailing evidence starts in Section C at page 30) outlines the extreme amount of foundation testimony and cross-examination the handlers were subjected to prior to this evidence coming in. And the court “split the baby”, excluding most of the evidence anyway. This just highlights the importance of a good reliability foundation and extreme patience on the part of the testifying handlers.
U.S. v. Ruffin (Ohio 2020) 2020 U.S. App. LEXIS 34732
Alert as Probable Cause
LE received an anonymous tip that subject planned to drive in a black SUV from one city in Ohio to another to purchase heroin from Mexican drug dealers. The tipster provided the license plate number. The tipster remained in contact with LE and alerted LE when they were within 15 minutes of their destination. LE set up surveillance and saw the black SUV pull up. After a three hour wait, two Mexican males came to the house and stayed for a short time and then left. The tipster messaged that subject had just purchased heroin from those males. Subject told tipster he had to use the bathroom first and tipster saw subject take the baggie of heroin with him. He was in there for about 20 minutes and then drove off. LE followed him and when he committed a traffic violation, he was pulled over. A PSD alerted on the vehicle which provided probable cause. A search of the vehicle and subject produced no heroin. LE suspected subject had concealed drugs in his anal cavity. They obtained a body cavity search warrant and took subject to the hospital for the search. A nurse did a digital exam and told LE that she felt something (this was also written in the medical records). Then the nurse inserted an instrument to visually inspect inside subject’s rectum. She saw a piece of plastic wrap. An X-ray was ordered and the treating physician saw 3 round objects so a soap suds enema was ordered. Between 2 and 4 enemas were used until subject released 3 golf ball sized bags of heroin and fentanyl.
Taken together, the court held that the above facts were sufficient to provide a fair probability that subject has secreted drugs on his person and therefore constituted probable cause. This included the PSD evidence. There was discussion about how the search was handled with the court suggesting LE start with an X-ray rather than sticking things up his rectum first.
Note: Kind of crazy facts, but case confirms that if you have additional evidence that subject could have secreted evidence in a body cavity and part of that evidence is a PSD alert on a relevant area, you have probable cause for a search. However, there is no warrant exception for a body cavity search; a warrant is required.
