DECEMBER 2021 UPDATE FOR MEYER’S K9 LAW (Volume 2, No. 12)

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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 2021. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. Just remember the arguments in these cases can be used; the case just can’t be cited as precedent in court.)

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

Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.

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



Several Republican members of Congress introduced a bill on November 15 to federally legalize and tax marijuana as an alternative to pending far-reaching Democratic-led reform proposals and scaled-down GOP cannabis de-scheduling legislation.

Rep. Nancy Mace (R-SC) is sponsoring the bill—titled the States Reform Act—along with a handful of initial Republican cosponsors. It would end federal marijuana prohibition while taking specific steps to ensure that businesses in existing state markets can continue to operate unencumbered by changing federal rules.

Unlike more modest measures previously championed by some of Mace’s GOP colleagues, this legislation—an updated draft version of which was obtained by Marijuana Moment over the weekend—represents an attempt to bridge a partisan divide. It does that by incorporating certain equity provisions such as expungements for people with non-violent cannabis convictions and imposing an excise tax, revenue from which would support community reinvestment, law enforcement and Small Business Administration (SBA) activities.

“This bill supports veterans, law enforcement, farmers, businesses, those with serious illnesses, and it is good for criminal justice reform,” Mace said in a statement on Monday. “The States Reform Act takes special care to keep Americans and their children safe while ending federal interference with state cannabis laws.”


Only 21 states allow citizen-initiated ballot initiatives, meaning in most states the only way to reform marijuana laws is via the legislature. With polls showing that 68% of Americans support making marijuana use legal and around 90% support allowing medical marijuana, lawmakers are finally starting to get the message that constituents want them to act on legalization.

Four states have legalized cannabis in 2021 via the legislative process — New York, Virginia, New Mexico, and Connecticut.

Meanwhile, Alabama’s legislature and governor legalized medical cannabis this year, and Louisiana decriminalized possession of up to 14 grams.

South Dakota’s Supreme Court sided with the state’s governor and struck down a ballot initiative to legalize recreational adult-use cannabis that passed with 54% of the vote.


United States v. Campbell (Kentucky 2021) 2021 U.S. Dist. LEXIS 228190 – Traffic Stop; Reasonable Suspicion; Prolonged Detention; Reliability Foundation; Collective Knowledge Doctrine

United States v. Williams (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 227688 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Cruz (Arizona 2021) 2021 U.S. App. LEXIS 34975 – Traffic Stop; Reasonable Suspicion; Prolonged Detention; Collective Knowledge Doctrine

Frazier v. Cty. of Douglas (Nebraska 2021) 2021 U.S. Dist. LEXIS 226440 – Excessive Force; Graham v. Connor factors; Contributory Negligence; Assumption of the Risk

Derrick v. Superior Court (California 2021) 2021 Cal. App. Unpub. LEXIS 7403 – Traffic Stop; Odor of Marijuana as Probable Cause; Inventory Search

State v. Baker (Louisiana 2021) 2021 La. App. LEXIS 1750 – Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause; Plain View Doctrine

State v. Walbridge (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 896 – Traffic Stop; Alert as Probable Cause; Prolonged Detention; K9 Entering Vehicle; Alert Behaviors v. Final Response/Indication

United States v. Bennett (Utah 2021) 2021 U.S. Dist. LEXIS 224158 – Traffic Stop; Alert as Probable Cause; Collective Knowledge Doctrine

United States v. Butler (10th Cir. 2021) 2021 U.S. App. LEXIS 34570 – Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reasonable Suspicion

People v. Restrepo (Colorado 2021) 2021 COA 139 – Sniff by Marijuana Trained K9 as a Search; Good Faith Exception

United States v. Hargis (Kentucky 2021) 2021 U.S. Dist. LEXIS 215424 – Reasonable Suspicion v. Probable Cause; Prolonged Detention; Alert as Probable Cause

Commonwealth v. Ramey (Virginia 2021) 2021 Va. Cir. LEXIS 212 – Traffic Stop; Prolonged Detention

Bowie v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 988 – Traffic Stop; Odor of Marijuana as Probable Cause

Schopper v. Cty. of Eaton (Michigan 2021) 2021 U.S. Dist. LEXIS 216174 – Excessive Force; Failure to Provide Medical Care

Walker v. Town of Madison (Wisconsin 2021) 2021 U.S. Dist. LEXIS 216361 – Excessive Force; Qualified Immunity

United States v. Holt (Connecticut 2021) 2021 U.S. Dist. LEXIS 218847 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Lopez (Kansas 2021) 2021 U.S. Dist. LEXIS 219341 – Traffic Stop; Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause; Consensual Encounter

Commonwealth v. Castro-Mota (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 2919 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

United States v. Smart (Virginia 2021) 2021 U.S. Dist. LEXIS 211981 – Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reliability Foundation

White v. Detroit (Michigan 2021) 2021 U.S. Dist. LEXIS 212136 – Excessive Force; Qualified Immunity; Monell Liability

United States v. Phillips (Illinois 2021) 2021 U.S. Dist. LEXIS 213572 – Traffic Stop; Alert as Probable Cause

People v. Davis (Michigan 2021) 2021 Mich. App. LEXIS 6286 – Traffic Stop; Reasonable Suspicion; Alert as Probable Cause


United States v. Campbell (Kentucky 2021) 2021 U.S. Dist. LEXIS 228190
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Reliability Foundation; Collective Knowledge Doctrine

LE received a tip from a reliable informant that drug deals were being made out of specific motel rooms. LE was able to remotely access the motel’s security camera footage (this was an ongoing investigation). LE put a uniformed officer on standby as LE was in an unmarked car without emergency equipment. LE then viewed camera footage on the motel room described by the CRI. LE noted a lot of foot traffic that only stayed for short periods. LE observed a black male driver up and enter the room, come back to the car within two minutes, stayed a short time in the car and went back to the room for another short stay and then drive away. LE contacted the uniform and asked for a traffic stop. LE also contacted a K9 team to respond. Uniform stopped the car for signal and tint violations. LE was behind these vehicles when they stopped Campbell, the driver. Campbell only had a learner’s permit which was not valid since no passenger was over 21. When uniform called Campbell’s information in, it was discovered that Campbell was a gang member which meant uniform would need additional information from Campbell. While this was going on, K9 alerted to the vehicle by final indication (sitting).

The court first held that the stop was supported by probable cause for the traffic violations. In addition, the court further held that LE, via the collective knowledge doctrine, had reasonable suspicion to believe the vehicle was involved in drug activity because of the information possessed by the surveilling LE. Collectively, before stopping Campbell’s car, the officers knew that 1) the car had just visited a hotel that had been the site of drug-trafficking activity in the past; 2) an informant, who had provided reliable information in the past, stated that drug-trafficking was occurring in a particular room at the hotel on the day the car visited it; 3) the informant stated that the occupant of the room had moved from a room in the front to a room at the back and that visitors arrived at the hotel, entered the room for short periods, and then left, which is consistent with drug activity; 3) LE conducted surveillance and determined, based on his years of experience in investigating illegal drug activity, that the activity at the room was consistent with drug trafficking; 4) Campbell’s car parked near that room and one of its occupants entered the room for a short period of time, returned to the car, and then entered the room again for a short period of time, which LE knew was consistent with illegal drug activity; and 5) Campbell’s car abruptly changed to the left turn lane when uniform pulled up behind it in a patrol car.

The court then turned to whether the stop was unduly prolonged. Once contact was made, not only was Campbell driving illegally, but he and his occupants lied about their travels and Campbell turned out to be gang member. All this justified further investigation. Then, the court held, the K9 sniff did not unduly prolong the stop as the K9 team was already on site, and the sniff was conducted appropriately concurrent with the traffic investigation. Campbell tried to claim that the K9 was not sufficiently trained because K9 alerted on the back door of the car when the marijuana was found in the console. The handler testified about how his K9 was selected, trained and certified and how scent works and the court held the K9 was reliable.

Note: While the court held that a physical certificate need not be produced since the handler’s testimony about the K9’s certification was sufficient, it is probable better practice to provide a hard copy of the certification to the DA’s office for discovery to the defense.

United States v. Williams (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 227688
Traffic Stop; Odor of Marijuana as Probable Cause

LE was on patrol and observed a BMW and, as per his habit, LE ran its plate. TheBMW  plate was registered to an Infinity with Williams as the RO. LE checked Williams’ DL photo and also found out that Williams was suspended. LE then saw two males get into the vehicle. LE then noticed that the window tint appeared too dark. LE followed the BMW into the hotel parking garage (a minivan was in between). The BMW backed into a spot and LE blocked the BMW with his cruiser. At this point, LE confirmed the driver was Williams and activated his lights. LE radio’d in his location. LE saw three people exit the BMW and head toward the elevator, so he lowered his window and asked them to stop and got out of the cruiser. At that point, LE could smell marijuana coming from the car and the occupants and it was obvious to LE that all three had been smoking marijuana in the car. They stopped and Williams produced a license but no registration or insurance for the car. The license belonged to Williams’ older brother. Williams then produced ID. Williams admitted smoking marijuana. LE, outnumbered, called for back up when he called in Williams’ information. LE returned to Williams and, after discussion, Williams produced a baggie of marijuana from his pocket. Williams refused to open the locked BMW for a search, so LE handcuffed him, took the keys from Williams, opened the BMW and found additional contraband.

The court first established that, based on LE’s experience and training, LE was able to recognize the odor of marijuana. As for the search, the court held that LE had ample probable cause to search the BMW based on probable cause provided by the smell of marijuana alone. In addition, LE had Williams’ admission that he had been smoking marijuana and that Williams was in possession of a baggie of marijuana.

Note: The court also addressed the issue of whether LE already had possession of all the marijuana (the baggie) and if so, whether LE was prohibited from continuing to search. The court held that LE was not bound by that (especially since such an issue was not raised in court) and could continue the search even if Williams had asserted at the scene that the baggie was the extent of the marijuana possessed. This is a federal case, so under federal law, marijuana is illegal for all purposes.

United States v. Cruz (Arizona 2021) 2021 U.S. App. LEXIS 34975
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Collective Knowledge Doctrine

LE stopped a car for following too closely. During the stop investigation, a K9 alerted to the vehicle. The court held that the traffic stop was valid because of the moving violation. The court also held that the stop was not prolonged by the K9 sniff due to the concurrent drug trafficking investigation, the facts of which were imputed to LE from the detectives via the collective knowledge doctrine and which extended the time to investigate. The court finally held that in addition to the collective knowledge doctrine, Cruz was behaving nervously during the stop, had suspicious travel plans, and was traveling along a known drug-trafficking corridor. These factors together justified LE’s prolonging of the stop for a K9 search, and Cruz’s evaluation and rejection of the factors in isolation from each other does not take into account the ‘totality of the circumstances.’

Note: This opinion basically affirms a lower court ruling, so the facts are minimal. The collective knowledge doctrine was again utilized (stopping LE is allowed to do so as if he had personal knowledge of some or all the facts of the drug investigation). There are some nuances to the application of the collective knowledge doctrine so be sure to check with your local prosecutor on what actually must be relayed to the stopping officer.

Frazier v. Cty. of Douglas (Nebraska 2021) 2021 U.S. Dist. LEXIS 226440
Excessive Force; Graham v. Connor factors; Contributory Negligence; Assumption of the Risk

LE was at Frazier’s house to execute arrest warrants for Frazier alleging burglary, domestic violence and use of a deadly weapon. Instead of answering LE’s knock, Frazier barricaded himself in. After 15 minutes of ordering Frazier out, LE rammed the front door. Frazier then retreated to the attic. It was unknown whether Frazier had access to weapons. Frazier buried himself in insulation in the attic.

LE was unwilling to enter the attic for a number of reasons, including officer safety. The warrants had been issued for violent crimes and LE did not know if Frazier was armed. There was a risk that one or both parties could fall from the attic into the room below if LE and suspect were to engage in a physical confrontation in the unfinished attic. LE was unsuccessful in using a pole camera to locate Frazier in the attic. Less lethal options were considered but OC spray and tasers would not have been effective due to the fact that Frazier’s location in the attic was unknown. LE at the scene had not been trained to use a pepper ball gun, and while a 40-mm launcher was available and could have been used to disburse a chemical irritant in the attic, LE determined that testified that it would not have been safe to do that because some suspects suffer serious adverse allergic reactions.

Douglas County’s policy for use of force required the following criteria be considered prior to deploying a canine in a use of force situation: (1) the severity of the crime; (2) whether the suspect(s) pose an immediate threat to the safety of the officers or the public; (3) whether the suspect(s) is actively resisting arrest or attempting to evade arrest by flight; and (4) the K9 handler should make every effort to ensure that the K9 uses only the amount of force necessary to affect the apprehension.

Multiple officers called for Frazier to surrender himself or else the K9 would be sent into the attic. All the parties agreed that Frazier was told that the K9 would bite him if he did not surrender. After thirty to forty minutes and at least a dozen such warnings, handler his sent K9 into the attic. Handler stated that K9 did not initially engage the subject, but located him, sat, and barked. At that point, handler gave a second override command, which K9 “to engage whatever he found up there whether he was moving or not.” K9 is trained to engage any part of the suspect’s person that is available. Handler stated he did so because Frazier was not being compliant to commands, was a threat to the officers, and was in a position to resist and cause harm to the officers. The undisputed evidence shows K9 bit Frazier on the face, lips, and upper neck just below the jaw. Handler commanded K9 to release Frazier when he heard Frazier say something along the lines of, “He’s got my lip,” or “He’s got my face.”

The jury was instructed on the defense of contributory negligence and assumption of the risk. “‘A plaintiff is contributorily negligent if (1) the plaintiff fails to protect himself or herself from injury; (2) the plaintiff’s conduct concurs and cooperates with the defendant’s actionable negligence; and (3) the plaintiff’s conduct contributes to the plaintiff’s injuries as a proximate cause.'” “Assumption of risk” as an affirmative defense means that “(1) the person knew of and understood the specific danger, (2) the person voluntarily exposed himself or herself to the danger, and (3) the person’s injury or death or the harm to property occurred as a result of his or her exposure to the danger.” The doctrine of assumption of risk applies a subjective standard, geared to the individual plaintiff and his or her actual comprehension and appreciation of the nature of the danger he or she confronts. Contributory negligence applies an objective standard; that is, what would a reasonable person/LE do in similar circumstances.

LE all testified Frazier was a potential danger to them. He was hiding from police, and it was unknown if he had a weapon. There was some indication that he could have been under the influence of substances that the officers knew made suspects unpredictable and erratic. He had used a two-by-four to commit an assault in the past and there were likely to be two-by-fours in the attic. Frazier hid from the law enforcement officers for over an hour. He admits that he heard members of the task force ask him to surrender, and heard, at least once, they were calling a K9  to the premises. He recalled being warned that the dog would bite him if he did not surrender.

Although the Sheriff’s Office’s written policy states that K9s should not be used when a suspect is “obviously not a threat” or “not able to resist or escape,” trial testimony of the law enforcement officers demonstrated that despite the policy’s plain language, the protocol does not apply in all circumstances. Though the severe and extensive injuries in this case were troubling to the court, sending a K9 into an enclosed space can be considered the use of lesser deadly force in some circumstances. The use of lesser deadly force as an extraction method is generally considered reasonable when the there is a threat to the safety of the arresting officers, innocent bystanders, or the suspect. Following his training and experience, it was objectively reasonable for handler to believe he was justified in deploying the canine to apprehend Frazier.

The court dismissed Frazier’s assertions that less lethal means should have been employed instead of the K9. The court accepted LE’s reasons for not using less lethal means, including LE and suspect’s safety.

The court also stated that Frazier failed to present any evidence, expert or otherwise, that K9s can be trained not to bite someone’s neck or throat. There was no testimony from a qualified expert that using K9 to find and retrieve the Frazier was not appropriate.

Even if the Frazier had met his burden to prove negligence, the court held,  Frazier’s own admission that he heard and ignored the commands of LE to come down from the attic, showed either assumption of risk or contributory negligence sufficient to bar his recovery. The Court discredited Frazier’s testimony that he did not know or understand the specific risk of danger of a K9 bite when he voluntarily chose to disregard law enforcement commands and to hide himself among insulation in an unfinished attic although he was aware a K9 was being called. The Court had no doubt Frazier did not anticipate the severity of the injury he sustained but he clearly understood he could and probably would be bitten as the result of his uncooperative conduct.

Note: This case introduces the concepts of assumption of the risk and contributory negligence. These standards vary from state to state. If you find yourself in an excessive force case, be sure to speak with the attorney representing you about whether these concepts apply in your case. In addition, the court was very impressed that LE moved forward in measured steps, carefully considering the effects of all tools at their disposal and that Frazier was clearly warned many times about the K9 being released.

Derrick v. Superior Court (California 2021) 2021 Cal. App. Unpub. LEXIS 7403
Traffic Stop; Odor of Marijuana as Probable Cause; Inventory Search

Traffic stop for tinted windows. While following the vehicle, LE discovered that the RO Derrick was driving suspended. Derrick also had a previous firearm arrest. Derrick drove 1/10 of a mile before stopping for LE and parking legally. LE smelled the odor of marijuana from the car but did not know if it was freshly burned or whether Derrick extinguished it prior to pulling over. A Terry frisk of Derrick was fruitless. LE then decided to tow the vehicle for an inventory search. The LE agency policy on towing was left to the discretion of the officer. Here, LE decided to tow the vehicle instead of allowing a licensed driver to take care because they suspected criminal activity beyond a suspended license (a non-inventory purpose). LE then told Derrick they would be searching the vehicle because of the odor of marijuana. LE, however, did not perform any DUI investigation and admitted he had no idea when marijuana may have been consumed in the vehicle. In the vehicle was marijuana, a gun and ID theft documents.

The appellate court held first that there was no probable cause to authorize a search of the vehicle. First, the change in the law to legally possess marijuana means that “lawful” possession cannot be the means to support probable cause. However, legal amounts of marijuana in an illegal setting can be the basis for probable cause, such as possession in an open container or driving DUI (marijuana). Here, neither of these two avenues were properly developed by LE. That left only the smell as justification; smell is not enough to provide probable cause based on the legalization of marijuana in California.

The court moved on to an inventory search, holding that the tow and inventory search in this case was a ruse to a “general rummaging” through the car in order to discover incriminating evidence. Here, there was no evidence presented that the tow was due to some community caretaking function. The car was legally parked and Derrick was not allowed to call anyone to drive the car away. Moreover, the court found the evidence indicated that the tow and inventory was motivated by an investigatory purpose.

Note: California now has a split in its authorities as to whether a “legal” amount of marijuana can be the basis for probable cause. Here, the court followed the Johnson case which held that similar facts did not result in probable cause for search. Note this case is unpublished; it seems the district courts don’t want to take a stand that will force a showdown between the appellate districts. For now, best practice in this type of case would have been to investigate for DUI, see if driver would have admitted to recently consuming marijuana to bolster that investigation and to make sure you have a community caretaking function argument when towing a vehicle (especially when your agency’s policy puts the decision on the officer as it did here).

State v. Baker (Louisiana 2021) 2021 La. App. LEXIS 1750
Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause; Plain View Doctrine

LE saw what they believed to be a drug transaction between a occupant in a vehicle and a pedestrian. LE followed the vehicle and stopped it. Driver was Baker. LE smelled an odor of marijuana coming from the vehicle. Baker denied having any weapons or narcotics. When told LE was calling in a K9 team, Baker attempted to drive off. LE and Baker struggled and Baker was able to get the console open where LE saw a handgun. Baker was arrested and placed in a police car. K9 arrived and alerted to the vehicle. Baker had marijuana on his person and the gun in the car was fully loaded. There were only trace amounts of marijuana in the vehicle.

The search of Baker’s person was valid as incident to arrest. As for the search of the vehicle (while Baker was in the patrol car), the court held it was valid as it was supported by probable cause based on the odor of marijuana and the K9 alert. In addition, the plain view doctrine came into play as the gun was first viewed when Baker, in his attempt to escape, opened the console. In addition, the gun was properly seized pursuant to LE safety.

The court noted that since LE smelled marijuana in the Baker’s vehicle and therefore had probable cause to search it. Even under Gant, the search would have been permissible because Gant allows for the search of a vehicle if there is reason to believe the vehicle contains evidence of the offense of arrest.

Note: This court held that the smell of marijuana was sufficient for probable cause but so was the alert of the K9. In addition, the gun was seized under the plain view doctrine as well as LE safety. A good reminder to always argue all avenues of admissibility.

State v. Walbridge (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 896
Traffic Stop; Alert as Probable Cause; Prolonged Detention; K9 Entering Vehicle; Alert Behaviors v. Final Response/Indication

LE stopped Walbridge for speeding. Walbridge was sweating profusely, had constricted pupils, bloodshot eyes, and he was shaking and overly nervous. There were numerous air fresheners. Walbridge claimed he was coming from a cousin’s house which was known to LE as a drug house.

Walbridge failed the FSTs. Walbridge denied consent to search. LE then called for a K9 team which arrived 20 minutes later. K9 jumped in the car through the open driver’s side window. Inside the car, K9 alerted on a backpack on the back floorboard.

The court concluded that Walbridge’s signs of impairment were properly considered-along with all the other circumstances-when determining whether reasonable suspicion justified the K9 sniff in this case. Here, LE observed several signs of impairment, and Walbridge’s field tests suggested that he was impaired. Walbridge had been at a residence known for drug activity shortly before the traffic stop. LE observed numerous air fresheners inside the vehicle, which, in his training and experience, were likely used to mask odors from controlled-substance use. Under the totality of those circumstances, LE had reasonable suspicion of drug-related criminal activity and that the K9 sniff of Walbridge’s vehicle was lawful. The alert then provided probable cause for the search.

Walbridge then argued that the search was unlawful because K9 entered his vehicle during the K9 sniff. He claimed that the handler “facilitated” the K9’s entry into the vehicle by opening the driver’s-side door before the K9 displayed a final response indicating the presence of narcotics. Prior to this, Minnesota courts had not addressed the constitutionality of a K9 sniff of a vehicle’s interior when the handler facilitates the K9’s entry into the vehicle.

Here, though, the court found that the K9 showed alert behavior prior to jumping through the open window. The K9’s detection of that odor was evident through its heavy sniffing and more intense breathing. At the contested hearing, the handler explained the significance of that behavior: “[T]he dog breathing in that way and his body language that I testified to is an indication to me that he is in odor, which is an alert to the presence of odor. It’s not a final response, but it is an alert to the presence of odor.” The court further held that a final response is not necessary when a K9 has shown reliable behaviors that indicate the K9 is in odor.

Note: The issue of the entry of the K9 into the car was not reached because the court found that the K9 had already alerted to the car prior to jumping in. However, as a general rule. if your K9 jumps in a car, you must not have facilitated that entry or encouraged it. Best practice is to shut doors and windows first and then have K9 perform the sniff. A well-trained K9 will alert. The handler also did a good job in describing the K9’s alert behaviors and distinguishing them from its final response. 

United States v. Bennett (Utah 2021) 2021 U.S. Dist. LEXIS 224158
Traffic Stop; Alert as Probable Cause; Collective Knowledge Doctrine

LE stopped Bennett at the direction of investigators when the vehicle’s tires crossed the double yellow center line. Bennett was a target of an active drug trafficking investigation. LE contacted Bennett and went back to his cruiser. He told another officer to let investigators know that Bennett was stopped. By that time, a K9 had alerted on the vehicle. Investigators instructed LE to arrest and search Bennett.

Bennett filed a motion to dismiss. The court chose to rely on the video of the stop and the testimony of LE rather than the defense expert and found that LE had probable cause to stop Bennett. The court also addressed the collective knowledge doctrine. The court first found that the drug investigation had produced enough evidence to believe Bennett was engaged in criminal behavior. Because of the knowledge gained by the investigators, the stopping LE could rely on the assertion that the task force had reasonable suspicion, even though the full extent of the investigation was kept from the stopping officer because of fear of compromising the investigation.

Note: Apparently, Bennett was an informant working undercover for the task force who went off the rails and was trafficking drugs without authorization from the task force. This was why the task force was not forthcoming about the full extent of the investigation. The K9’s alert was not challenged on appeal.

United States v. Butler (10th Cir. 2021) 2021 U.S. App. LEXIS 34570
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reasonable Suspicion

Traffic stop by trooper of an out of state truck carrying a car with incorrect tie down. Trooper started an investigation as to whether the truck was subject to federal mandates as an interstate carrier. Butler, the driver, had several conflicting stories, so he was directed to a nearby scale to see if he exceeded the pound limit and if so, he would be subject to a fuel tax. On the way there, trooper found out he was a felon on probation.

Handler arrived at the scale and immediately deployed a K9 which alerted on the car. At that time, trooper was still searching for Butler’s USDOT number in a federal database. Seconds before the alert, trooper received Butler’s criminal history, which revealed prior drug-trafficking convictions. A search of the car pursuant to the alert revealed narcotics and hidden compartments containing narcotics. Butler’s cell phones were also seized as potential evidence.

Butler filed a motion to suppress but did not challenge the reason for the stop. He did, however, assert that the stop was unreasonably prolonged when he was directed to a nearby scale to buy time for the K9 sniff to occur.

The trial court found the following facts: the lack of a bill of lading for the vehicle and inconsistent and non-credible explanations; absence of any documents for a commercial tow truck or the car; Butler’s travel history and plans, which made little sense; hesitation regarding information on the owner of the car; the unlikelihood that someone would pay the high cost of hauling a salvaged Ford Fusion hundreds of miles from one state to another on a single-car commercial tow truck; the unlikelihood that a salvage vehicle titled in Rio Linda, California, would coincidentally end up in Denver and be transported by Butler, whose hometown is also Rio Linda; the removal of only the rear license plate from the Ford Fusion, which suggested a desire to prevent license plate readers from checking the vehicle’s registration; the thick layer of dirt and grime on the Ford Fusion, including both windshields, given that owner had reportedly driven the car to Denver for pick up by Butler; and Butler being on federal supervised release. Based on these facts, considered in their totality, the trial court found that trooper had reasonable suspicion of drug trafficking to move the truck to the scale and to wait for a K9 team. On appeal, Butler tried to explain away individually each fact, but the appellate court ruled with the trial court, stating that these factors must be viewed in totality, not analyzed separately. In addition, the appellate court held that the overall length of Butler’s detention until the K9 alerted – approximately 32 minutes – did not violate his Fourth Amendment rights.

Note: Butler also complained about statements admitted in his trial, but I did not review that portion of the opinion as it is not relevant to our purposes here. The trooper here did a really good job in noting small details which, once paired with trooper’s training and experience, showed Butler was up to more law violations other than traffic infractions.

People v. Restrepo (Colorado 2021) 2021 COA 139
Sniff by Marijuana Trained K9 as a Search; Good Faith Exception

In 2017, drug task force investigators were following a suspected “high level” drug dealer when he visited Restrepo’s house. After the drug dealer drove away, some members of the task force stopped him; they found firearms and a quarter pound of methamphetamine in his vehicle. At some point, the drug dealer told officers that he had been at Restrepo’s house to sell him methamphetamine.

Meanwhile, other members of the task force followed Restrepo when he left in his car, following him for a couple of hours. During that time, the task force “decided to make a traffic stop.” After Restrepo rolled through a stop sign, the task force asked a handler to stop Restrepo’s car. During the stop, handler patted Restrepo down and found $1,200. He then deployed his K9 to perform a drug sniff of Restrepo’s vehicle. The K9, trained to alert to marijuana as well as to other controlled substances, alerted to Restrepo’s car. Handler then searched the vehicle and found suspected methamphetamine and drug paraphernalia in a backpack in the backseat.

The government conceded that based on the governing law at the time, LE did not have probable cause for a K9 sniff (as required by Colorado case law precedent), instead arguing that LE was acting in good faith as the case law was not settled at the time of the sniff and therefore, the evidence found during the search should be admitted.

The appellate court held that when a K9 trained to alert to both marijuana and illegal drugs alerts, the handler does not know if the K9 is alerting to contraband or to a legal amount of marijuana. This is based on the McKnight line of cases. Therefore, a sniff from a K9 trained to detect marijuana is a search under the Colorado Constitution; it intrudes on a person’s reasonable expectation of privacy in lawful activity. Accordingly, there must be probable cause to believe a vehicle contains illegal narcotics under state law before deploying a drug detection K9 trained to alert to marijuana.

The government contended that the handler’s conduct was “reasonable” at the time he conducted the search because a reasonable officer would not have anticipated the ruling in McKnight II and the effect of Amendment 64 on prior precedent involving K9s trained only to sniff illegal narcotics. However, the appellate court held that while it is true that the statute defines a “good faith mistake” as “a reasonable judgmental error,” it also states that the error must be with respect to the “existence of facts or law.” The case law states that good faith with respect to law applies where there is “reliance on then-binding appellate court precedent,” not merely conduct that is reasonable in the abstract. Since the court concluded there was not binding appellate court precedent, the reasonableness of the officer’s conduct is not determinative.

Note: Colorado is doubling down on marijuana trained K9s. This holding indicates that if a K9 is trained on marijuana, a K9 alert is not probable cause for anything (even other drugs for which the K9 is trained) because of the possibility that the K9 is alerting solely on marijuana. Therefore, handlers with K9s trained on marijuana are going to need to establish probable cause prior to deployment for the sniff. The reasoning is that since marijuana can be possessed legally, the K9 is not sniffing an illegal substance and therefore the sniff is a search in violation of the 4th Amendment. This is in contravention of federal precedent and other states’ position on this issue. Colorado K9s, in the future, should not be trained to detect marijuana.

United States v. Hargis (Kentucky 2021) 2021 U.S. Dist. LEXIS 215424
Reasonable Suspicion v. Probable Cause; Prolonged Detention; Alert as Probable Cause

During an ongoing drug investigation, LE conducted two controlled buys and a car stop on Hargis’ co-defendants, all resulting in discovery of controlled substances. An informant gave LE an address where co-defendant stored the drugs. A truck, known to be a vehicle one of the co-defendants drove (and driven at this time by Hargis), entered and quickly left with a black bag. Uniformed LE followed him to a Target parking lot where the driver attempted some evasive maneuvers. The truck parked and a car drove up. A car occupant entered and left the truck quickly, re-entering the car. All were quickly surrounded and detained at gun point by LE for safety since it was their experience that drug traffickers were often armed. Hargis told LE he had a gun in the truck. The car driver said he just purchased a large amount of Xanax from Hargis just before LE pulled up.

A narcotics K-9 arrived about 10 minutes after Hargis was placed in handcuffs and conducted a sniff of Hargis’ truck. K9 alerted to the odor of narcotics on the front door of the driver’s side. The truck was searched and a gun found along with a small amount of marijuana. Hargis was in possession of meth.

Hargis claimed that LE needed probable cause to detain him and conduct the investigation. The government argued that the initial detention only required reasonable suspicion of criminal activity and therefore, the detention of Hargis as well as the wait for the K9 was valid as the previous investigation as well as the actions of Hargis and the other driver added up to at least reasonable suspicion of drug trafficking.

The appellate court held that, at the outset, LE’s contact with and handcuffing of Hargis was an investigative stop, only requiring reasonable suspicion, a lesser burden than probable cause. This reasonable suspicion was based on the investigation of the co-defendant’s house as well as LE’s observations of Hargis’ behavior and the interaction with the other driver. The court went on to hold that the ten minutes LE waited for the K9 was not a prolonged detention, but a detention supported by reasonable suspicion, given that using a drug-sniffing K9 is a minimally intrusive means of investigating  LE’s suspicions that Hargis’ truck contained narcotics. The court then held that the detention did not ripen into an arrest until the K9 alerted to the truck. Thereafter, LE had probable cause to search the truck under the automobile exception to a search warrant. In addition, LE had the authority to search Hargis’ person pursuant to arrest of possession of marijuana.

Note: This was a federal case and marijuana remains illegal for all purposes in the federal system.

Commonwealth v. Ramey (Virginia 2021) 2021 Va. Cir. LEXIS 212
Traffic Stop; Prolonged Detention

LE observed a vehicle pull into a gas station. The passenger appeared to have recognized LE and the vehicle left the station, rather than obtaining gas or anything from the store. LE followed and observed that the windows of the vehicle were darkly tinted in violation of the law. However, LE did not have a tint meter so LE contacted handler to meet them to use handler’s tint meter. LE later admitted was the true reason for contacting handler was to utilize the K9 in a sniff of the vehicle.

LE claimed that the vehicle was speeding, but could not produce evidence of such a claim. LE also stated that they observed a passenger throw something out a window, but again could not produce competent evidence. LE stopped Ramey just before they lost jurisdiction (he was about to cross a county line). There was some discussion regarding whether Ramey has issues with her license or if there was outstanding warrants for Ramey. Again, LE did not competently testify to these issues. About 12 minutes after the stop, the K9 arrived and alerted to the car. Inside the car, LE found a compact with white residue that tested positive for methamphetamine. Even though handler had a tint meter, he never tested the windows.

During the motion to suppress in the trial court, the government conceded that LE’s decision to stop Ramey was pretextual and for the purpose of conducting a drug investigation. The government also conceded that LE never issued a citation or warning to Ramey for speeding, littering, or illegal window tint.

The appellate court first addressed whether LE had sufficient reason to conduct a traffic stop and concluded that the stop was justified, even though the testimony by LE was not enough to convict for speeding. The court then moved on to whether the stop was unconstitutionally prolonged. Given the standard that LE must diligently and continuously investigate the traffic stop while the K9 sniff is performed, the court found that LE did not pursue any of the traffic violations after correctly identifying Ramey. Therefore, the stop was unlawfully prolonged and the motion to suppress should be granted.

Note: Not sure what happened here, but I would guess some shortcuts were made because LE really just wanted to know if Ramey and her occupants were involved in drug trafficking. However, since they stopped her for traffic violations, it is LE’s duty to diligently and continuously investigate the violations that supported the traffic stop until after there is an alert by a K9. Here, they just relied on the K9, thinking that if the K9 alerted quickly, they were good. Unfortunately, they weren’t because they only identified the driver and had some confusion about the passenger’s warrant status; they did not go any further with the traffic investigation. The other glaring issue was that LE did not record any helpful information about the three traffic violations or use the tools available to confirm the violations (no bumper pacing, no use of the tint meter, etc.) In fact, the appellate court actually stated, “The (government)’s case could have been saved from the rigors of Rodriguez had, once (handler) arrived, another officer used the tint meter while (handler) conducted the canine sniff simultaneously.” Such a simple solution, yet these LE did not execute appropriately.

Bowie v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 988
Traffic Stop; Odor of Marijuana as Probable Cause

LE was on patrol in his marked police vehicle when he noticed a suspected drug deal occur between Bowie and another person. LE followed Bowie’s vehicle and pulled him over after witnessing three separate traffic infractions. As LE approached Bowie’s vehicle, he detected the odor of raw marijuana coming from the vehicle. LE removed Bowie from the vehicle, and a search of the vehicle uncovered a loaded handgun, among other things.

The court found that LE had sufficient training and experience to identify marijuana from smell alone. The court then held that when a person smells a particular odor, there is a reasonable certainty that its source is nearby. In this case, the marijuana smell grew stronger the closer LE got to the vehicle and its open window. “This is sufficient to establish probable cause to believe that raw marijuana would be found somewhere within Bowie’s vehicle….”

Note: Indiana has not legalized marijuana (with the exception of Delta-8 derivatives in small amounts).

Schopper v. Cty. of Eaton (Michigan 2021) 2021 U.S. Dist. LEXIS 216174
Excessive Force; Failure to Provide Medical Care

Schopper alleges that handler failed to call off the K9 after they saw Schopper surrender and allowed the attack to continue for several minutes before sitting on Schopper’s back and securing his hands. Schopper also claims that after he was in handcuffs, handler ordered K9 to attack Schopper’s ankle. The Court concluded that Schopper has alleged sufficient facts to state a Fourteenth Amendment excessive force claim against handler.

Note: This is a ruling on a preliminary review where the court is required to rule for the plaintiff on his version of the facts if those facts allege a violation of civil rights. This court found that the action was under the 14th Amendment because it was after a legal apprehension for a warrant (therefore, the 4th Amendment was not implicated). Also, there was an allegation of failure to provide medical care and the court found an action under the 14th Amendment to be valid also. Schopper alleged that he wasn’t offered medical care after the bite, but taken to the jail. Handlers must make sure that people who are bitten are given the appropriate first aid and medical treatment.

Walker v. Town of Madison (Wisconsin 2021) 2021 U.S. Dist. LEXIS 216361
Excessive Force; Qualified Immunity

Walker was attacked and injured by a K9 during an encounter with LE. LE mistakenly believed that Walker and her companions were involved in an earlier vehicle theft during which shots were fired. When LE tried to stop the car in which Walker was a passenger, the car sped off, leading LE on a lengthy high-speed car chase that ended with a stand-off in a cul-de-sac. Walker refused to follow LE instructions for several minutes, and handler ultimately ordered his K9 to bite her.

To overcome qualified immunity in an excessive-force case, Walker must either (1) identify a closely analogous case that established a right to be free from the type of force LE used, or (2) show that the force was so plainly excessive that, as an objective matter, LE would have been on notice that they were violating the Fourth Amendment.

However, because LE raised the defense of qualified immunity, the court’s task was not to determine whether Walker’s injuries were deserved, regrettable or preventable. The court must instead decide whether the facts, taken in Walker’s favor, show that LE violated a constitutional right that was clearly established at the time of the events in question.

After reviewing video footage of the car chase, stand-off and dog bite from several angles, the court found it clear that the entire situation was extremely tense and dangerous for all involved. With the benefit of hindsight, the K9 bite might have been avoided. However, defendant LE did not violate any clearly established law by using the K9 to apprehend Walker under the circumstances. Accordingly, defendants are entitled to qualified immunity.

The language the court used was strong: “In this instance, defendants (LE) faced a situation that was dangerous, tense, uncertain and rapidly evolving—precisely the context in which the Supreme Court has counseled courts to make allowances for on-the-scene decisions about the amount of force that is necessary, “even if it may later seem unnecessary in the peace of a judge’s chambers[.]” Thus, although the outcome of this incident was unfortunate, not every officer would have known that defendants’ conduct under the circumstances was, beyond question, a violation of the Fourth Amendment.”

Note: The court compared and contrasted another case, Becker, with this one in their analysis in determining qualified immunity. They found there were significant differences in the facts of the cases and therefore, even though the Becker case found no qualified immunity, qualified immunity was applicable here. It’s a good read to acquaint yourself with this type of argument. Also, please see my article on qualified immunity in last month’s update.

United States v. Holt (Connecticut 2021) 2021 U.S. Dist. LEXIS 218847
Traffic Stop; Odor of Marijuana as Probable Cause

Handler stopped Holdt for speeding. During initial contact, handler smelled the odor of marijuana from the vehicle. Handler told Holt to “hang tight” and returned to his cruiser. Seven minutes passed. During that time, handler requested additional police presence which arrived shortly. Handler also got information back from dispatch about Holt. In a conversation with the arriving officers, handler told them Holt had a pending case for possession of a gun and that all handler had was a suspended license and speeding, but also said “if I pull him out…(unintell).” Handler returned to the car and ordered Holt out. Handler told Holt he smelled marijuana and asked if Holt had any. Holt replied he had a blunt. Handler then Terry frisked Holt, but Holt had no contraband or weapons. Handler then retrieved his K9 and conducted a sniff of the vehicle. K9 alerted to the outside and then handler opened the door of the vehicle and directed the K9 in where K9 again alerted. There was contraband found in the vehicle, including a blunt in the ashtray.

The court quickly found that there was sufficient cause to pull Holt over for speeding (as indicated by lidar). The court moved on to the issue of prolonged detention, holding that handler’s detection of the marijuana odor was sufficient to support reasonable suspicion that justified his continued seizure of Holt.

Holt complained that the odor of marijuana alone cannot justify the stop because the odor of marijuana is virtually indistinguishable from that of hemp, which was legal to possess at the time of Holt’s arrest. Holt also contended that because there was no way for handler to know whether the odor he detected was from marijuana or from legal hemp, handler lacked reasonable suspicion of criminal conduct.

In response, the court cited a 2nd Circuit case of US v. Bignon where the court held holds that an officer’s mistake regarding whether a substance is marijuana or hemp does not undermine the reasonableness of that officer’s belief that such a substance is marijuana. The Bignon court also emphasized that this conclusion was unaffected by the subsequent discovery that the cigarette did not actually contain marijuana because “[p]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”

Here, the court held that just as the possibility that the odor handler detected could have come from hemp does not undermine the reasonableness of his belief that it came from marijuana, the possibility that the odor could have come from legally (or non-criminally) possessed marijuana does not undermine the reasonableness of his belief that it came from criminally possessed marijuana. Because, for example, possession of more than one-half ounce of marijuana without a medical marijuana certificate as well as  any use of marijuana in a moving vehicle remained criminalized, the odor of marijuana could lead a reasonable officer in handler’s position to conclude that some form of criminal activity was afoot.

Note: Medical marijuana was legal at this time, but Holt never claimed medical possession or produced documentation of a medical need.

United States v. Lopez (Kansas) 2021 U.S. Dist. LEXIS 219341
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause; Consensual Encounter

LE stopped a vehicle for traffic violations and because LE was concerned that driver was impaired or tired. It took the vehicle a slightly extended time to pull over, the occupants were sketchy and the rented vehicle looked “lived-in” as if they were drug couriers. Lopez was the passenger. While LE went back to the cruiser to start the process, occupants found a rental contract; however, it was for another vehicle. Occupants then produced the correct contract; its terms were inconsistent with claimed travel direction. Both occupants had criminal drug histories and on federal probation for trafficking. However, LE only gave them a warning about the traffic violations, telling them, “You guys are good.” However, after taking a few steps toward his cruiser, LE turned around and approached the passenger window and asked if he could ask questions and if he could speak with them. There were discussions about their travels, relationship between them, occupations, rental agreements, and whether they had any illegal items. LE then asked if he could search the vehicle. Lopez said, “Do you have a problem with us?” Neither occupant ever answered the question about searching the vehicle. LE then asked if a K9 could sniff and they consented. LE’s K9 alerted on the vehicle.

The court first held that the reasons for the initial stop were valid. The court then held that by the end of the initial stop, LE had developed reasonable suspicion that occupants were involved in drug trafficking. The court pointed to several factors that, taken in totality, constituted reasonable suspicion of drug trafficking which then allowed the extension of the traffic stop for the K9 sniff. Those factors were: the vehicle slowing down and driving 10 miles-per-hour below the speed limit, taking an unusually long time to pull over, their inconsistent and uncertain travel plans, nervousness and hesitation answering simple questions, criminal histories with drug trafficking, the van’s lived-in appearance consistent with the “hard travel” often employed by drug couriers, Lopez’s statement that the two did not want to exit while LE was following them because they did not want to appear suspicious, and the radar detector in the rental car.

The court went on to address the consensual nature of the contact by LE after the warning was issued. The totality of these circumstances indicate that a reasonable person would have felt free to leave after LE told them “you guys are good.” Indeed, Lopez voluntarily reengaged LE in conversation after being told “you guys are good,” mentioning that they wanted to go to a Subway. After that short exchange, LE told them to “take care” and waved. He then took six steps towards his patrol vehicle, reaching the rear of the rental car before turning back. He approached the passenger window and asked the occupants if he could ask additional questions. Lopez responded, “Yeah, sure.” The whole time, the occupants remained in the car and could have driven off. LE never restrained them or displayed a weapon to ensure they stayed in place. The factors in light of the totality of the circumstances indicate that the encounter was consensual. Also, during this consensual encounter, LE observed additional facts that, in light of the totality of the circumstances and observations made during the first encounter, were enough to establish reasonable suspicion that occupants were involved in criminal activity. In particular, LE learned of more uncertainty around occupants’ travel plans. Lopez told LE that they were going to visit his grandmother in Kansas City but—though they were only a few hours away—could not provide an address for her house. Also during this consensual encounter, LE noticed increased nervousness. He testified that Lopez, the passenger, took over answering questions and that driver’s legs “started to shake.” Driver appeared “extremely worried about something” after having been told they could go. Even if LE did not have reasonable suspicion up to this point, the additional reasonable suspicion gained at the consensual encounter provided sufficient reasonable suspicion to wait for the K9 sniff.

Note: The initial contact and evidence gathering and the court’s analysis that LE gained enough reasonable suspicion to have a K9 sniff the vehicle aligns with federal standards. However, this court then addressed what they called the “two-step”: this technique of telling the occupants they were free to go and then asking for a consensual conversation and/or search. The theory is that since it is a consensual encounter, anything gained by LE is admissible. In my opinion, this is a risky maneuver, especially since reasonable suspicion already existed here. Courts have become more and more skeptical about these types of encounters and I believe they will continue to skew against these encounters as “trickery” or disingenuousness. Better to be up front and honest about your investigation of the traffic offense and then if you do develop additional reasonable suspicion, you can just proceed from there without the two step.

A motion for discovery was also addressed in this opinion, but it is not relevant for this purpose so I did not include discussion about this issue.

Commonwealth v. Castro-Mota (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 2919
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

LE, extensively trained and experience in drug interdiction, was engaged in monitoring traffic to look for specific indicators of drug trafficking. LE saw a van drive through a cash only tollbooth and as they followed, discovered that the van’s registration was expired. They caught up with the van where it was reversing on the shoulder of the highway. LE pulled in ahead of the van and activated the take down lights. The van then pulled out alongside LE and asked directions. The driver, Castro-Mota, was instructed to pull over. His girlfriend was the passenger. When LE approached, they noticed that he noted that there was a single key in the ignition. An “overwhelming” odor of air freshener, commonly used to mask the odor of controlled substances, emanated from the van. Air fresheners and laundry detergent were ultimately retrieved from the floor of the van. There was no laundry in the van. The van was registered to someone else, but Castro-Mota said he got the van from Julio (no last name). While LE consulted with each other, they saw Castro-Mota make a call on a flip cell phone while holding a smart phone in the other hand. Castro-Mota had inconsistent stories about his travels and activities. A K9 team was summoned to the scene. After the K9 team arrived, but before the K9 was deployed, LE found a black plastic bag on the ground outside the passenger door of the van. Inside were controlled substances and paraphernalia. The K9 alerted to the outside of the van and in the interior.

Driver complained that the stop was unlawfully prolonged because LE told the occupants that they would be free to leave soon, but instead LE waited for the K9 team. However, the court held here that LE had additional reasonable suspicion that drug trafficking was happening. Specifically, when LE approached driver’s van to resolve the reason driver “was pulled over in the first place,” i.e., the expired registration, LE testified about numerous indicators of drug trafficking, including a single key in the ignition, overwhelming odor of air freshener, inability to produce the vehicle registration, third-party ownership of the vehicle, and inconsistent answers by driver and his passenger. LE testified that the actions of driver and his passenger were consistent with those of drug traffickers, their route was a drug trafficking corridor, and he suspected driver of transporting drugs.

Note: Just because LE may say something like, “You’ll be free to go,” the court held that this is not the end of the traffic stop. Since LE had reasonable suspicion of drug trafficking, the extension of the stop was lawful, despite any statements that might be interpreted to be to the contrary. However, don’t buy yourself problems in court. Don’t act as if the stop is finished if it isn’t. No need to confuse the issues.

United States v. Smart (Virginia 2021) 2021 U.S. Dist. LEXIS 211981
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reliability Foundation

LE pulled Smart over for speeding. Smart was excessively nervous, stared at the windshield and had long pauses in his sentences. Smart was inconsistent about his travel plans. Smart admitted to these inconsistencies and also that he was speeding. There were gas cans in the car, consistent with drug running. Smart was also under the influence of cocaine at the time of the stop, which he also admitted.

When Smart denied consent to search, LE deployed his K9 who alerted on the car. Five kilos of cocaine were found.

The appellate court held that the K9 sniff did extend the traffic stop, but LE had developed additional reasonable suspicion of drug trafficking such that the extension for the K9 sniff was lawful. LE testified that Smart admitted that he had been speeding. As LE questioned Smart, Smart exhibited excessive nervousness, engaged in “clunky” conversation, stared at the windshield and required long pauses in his sentences. Smart behaved in a manner that led LE to believe that Smart might flee. Smart made inconsistent statements regarding his travel plans, as Smart even later admitted. LE also observed gas cans in the vehicle, which drug traffickers often will utilize to avoid extra stops. Indeed, during the hearing, Smart testified that he actually was under the influence of cocaine at the time of the stop. Based on Smart’s extreme nervousness, inconsistent travel itinerary and general demeanor, LE suspected possible criminal activity beyond that of speeding. Therefore, deployment of his K9 was lawful. Finally, the court held that an alert from a K9, when there is no reason to doubt the K9’s reliability (handler testified to certification and training), was probable cause sufficient to search Smart’s vehicle without a warrant. Finally, the court noted that after the alert, Smart tried to flee which bolstered LE’s probable cause.

Note: There was a subsequent traffic stop, but I have not reviewed that holding here as it is not relevant to the purposes of this update. No new issues here; just a good traffic stop, a thorough investigation and good reporting of facts of the stop and investigation.

White v. Detroit (Michigan 2021) 2021 U.S. Dist. LEXIS 212136
Excessive Force; Qualified Immunity; Monell Liability

LE was chasing a fleeing suspect through several private yards, including White’s yard, when they called for a K9 team to respond. LE was concerned that the suspect had dropped a firearm in one of the yards and they needed the K9’s assistance in finding the firearm. White was asked to put her dogs away prior to the arrival of the K9 team. White tried to capture her pit bull, but he alluded her and ran to the front yard. White went inside to get a leash. Since the pit bull was in the front yard, the handler decided to start in a neighbor’s yard to start searching. Handler walked her K9 next to the iron fence that surrounded White’s yard. The pit bull followed the K9 and then reached through the fence and bit the K9 on the snout, jerking the K9 toward the fence. Handler yelled at the pit bull and tried to pull the K9 by its leash away from the pit bull but it hung on. Handler then shot the pit bull, killing it.

White sued for a Fourth Amendment unlawful seizure claim against handler and a failure-to-train claim against the City—as well as three state claims—conversion, intentional infliction of emotional distress, and negligent infliction of emotional distress. The handler and the City claimed they were entitled to qualified immunity.

When LE claims qualified immunity, the court must, viewing the facts in the light most favorable to White, determine whether handler and/or City committed a constitutional violation. Second, the Court must determine whether that constitutional right was clearly established at the time of the incident. Here, handler and City concede that “it is clearly established in the 6th Circuit that people have a 4th Amendment constitutional right to not have one’s dog unreasonably seized.” In other words, handler and City challenge only White’s ability to prove the first prong. Accordingly, the Court confined its analysis to the first prong.

The court held that the Sixth Circuit has not directly addressed the issue of reasonableness in the context of an officer’s shooting of a pet to protect the officer’s K9 partner. However, as a starting point for its analysis, this Court used the Sixth Circuit’s holding in a related context—i.e., the reasonableness of an officer’s shooting of a pet to protect the officer’s own safety. The Sixth Circuit has held that the severity of the intrusion of an officer’s shooting of a pet is outweighed when the officer reasonably perceives the pet to pose an imminent danger to the officer’s own safety. An officer may also use deadly force against an animal who threatens the safety of fellow officers. These principles logically extend to an officer’s use of deadly force against a pet in situations where the pet poses an imminent danger to the officer’s K9 partner. K9 partners play an important role in law enforcement. They help to detect and prevent the destruction of evidence, find and apprehend suspects, locate and rescue victims, and protect the lives of their human police handlers. Because police officers rely on their K9 partners to effectively perform the officers’ jobs and protect the officers’ safety, an officer’s shooting of a pet—although a severe intrusion—simply does not outweigh the important government interest in protecting a police dog’s safety, where the pet poses an imminent danger to the police dog.

In addition, the court held that White could not use the fact that the injuries suffered by the K9 were minor because those facts were only known after the K9 was examined. The court reiterated that the facts of the case must recognize that officers in tense and evolving situations may have to make a split-second decision about the amount of force that is necessary. Here, it was reasonable for handler to believe that her K9 was in mortal danger or at least in danger of serious injury. Neither was the fact that handler saw the pit bull stick his nose through the fence an indication that handler should not have walked her K9 near the fence. Just the fact that the handler could have acted more cautiously does not render her actions unreasonable.

The failure to train action against the City was eliminated when the court found that handler did not act unreasonably. In such a situation, Monell liability cannot survive against the City. The remaining state claims were dismissed as well.

Note: Cases in which pets are killed are always going to be controversial, but the court held that the handler was justified in her actions in killing the dog that had her K9’s muzzle in its mouth and wouldn’t let go. This court drew a parallel between K9 officers and human officers which gives LE good language as to the usefulness of K9s. 

United States v. Phillips (Illinois 2021) 2021 U.S. Dist. LEXIS 213572
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause

LE stopped Phillips after surveilling him (he was suspected of carrying heroin) for rolling through a stop sign.

The court held that the stop and search of Phillips’ automobile was valid. An officer may stop a vehicle if he has probable cause to believe the driver of the vehicle committed a traffic violation. The officer further may conduct a free-air sniff around the vehicle by a trained drug-sniffing dog during the course of the traffic stop. A trained drug sniffing dog’s positive alert on a vehicle provides probable cause to search a vehicle. Here, LE observed Phillips commit a traffic violation and, therefore, had probable cause to conduct a valid traffic stop. LE had the trained K9 with him at the stop. He conducted the free air sniff with the K9 and the K9 alerted. LE thereby had probable cause to search Phillips’ vehicle. The search was valid, and the evidence was admissible.

Note: Apparently, the only issue challenged by Phillips was that he did not violate the law because he was not required to stop if there was no oncoming traffic or pedestrians. The court held that Phillips’ interpretation of the law was wrong. The other issues, prolonged detention, reliability foundation of the K9, etc., were not really discussed, but just affirmed.

People v. Davis (Michigan 2021) 2021 Mich. App. LEXIS 6286
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause

During a traffic stop on Davis for tinted windows, a K9 was deployed and alerted on the vehicle. There was a small amount of narcotics, which resulted in a search warrant and further investigation which were the basis of several drug charges. Davis was convicted and appealed.

Davis claimed that the initial stop was pretextual. However, the appellate court held that a traffic stop is valid, regardless of the subjective intent of LE, when a traffic violation is committed. Here, tinted windows were a valid reason for the stop. Davis then claimed that the alert by the K9 was insufficient probable cause. However, the court held in this case, the drug-detection K9 was present at the time that Davis’ vehicle was stopped. An officer circled the outside of the vehicle with the K9 and the K9 alerted to the presence of drugs. Therefore, the stop was not unlawfully prolonged and the officers had probable cause to search Davis’ vehicle.

Note: There was little discussion other than the conclusory statement that the sniff did not extend the trafffic stop as to what was happening when the sniff was going on. But this opinion does confirm that a sniff can happen concurrently with a traffic stop even without additional reasonable suspicion that additional crimes are afoot. I did not review the search warrant issue or the additional traffic stop because that part of the investigation did not have any K9 participation.