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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 2022. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.)

As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state. Next month I will summarize the outcome of the mid-term election cycle on marijuana.

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

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



By the end of the year, a cocaine derivative will be legal thanks to the U.S. Drug Enforcement Administration’s decision to pluck it from the list of controlled substances, but there’s no sign yet that the agency has similar plans for cannabis.

The U.S. Senate on Wednesday approved a U.S. House of Representatives-passed bipartisan bill to expand researchers’ access to marijuana in order to study its potential medical benefits, sending the bill to President Joe Biden’s desk. (This was signed into law by President Biden on Monday, December 5.)

A bipartisan group of lawmakers at a U.S. House of Representatives subcommittee hearing urged Congress to enact cannabis reform on a federal level.

An Ohio member of Congress told a gathering of Indigenous cannabis policy stakeholders Tuesday that he was committed to pushing through appropriations legislation that would bar the U.S. Department of the Interior from enforcing federal marijuana prohibition on tribal lands.

Staffers for a U.S. House of Representatives subcommittee have released a memorandum ahead of a cannabis policy hearing, laying out recommendations and evidence for how congressional lawmakers can liberalize U.S. marijuana laws at the federal level.

President Joe Biden directed the federal government to review cannabis’s status as a Schedule I controlled substance.


Idaho cannabis activists have kicked off the process for putting an initiative to legalize medical marijuana and tax its sale before voters in 2024.

Marijuana legalization was on the ballot in five states and only passed in Maryland and Missouri. Legalization failed in North Dakota, South Dakota, and Arkansas.

It should be noted that several states (Kansas, New York, Oregon) are either approving or considering approval of out of state marijuana for medical and even recreational use. In California, out of state marijuana as well as selling out of state is still illegal and is one of the factors the government can use to elevate small amounts of marijuana back to a felony. This is a trend that will be watched further as it develops. Check back here for more information when it comes.


Baxter v. Robert (11th Cir. Florida 2022) 2022 U.S. App. LEXIS 33045 – Traffic Stop; Prolonged Detention; Qualified Immunity

State v. Mitchell (Wisconsin 2022) 2022 Wisc. App. LEXIS 1091 (Unpub.) – Traffic Stop; Prolonged Detention

State v. Forsythe (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 751 – Traffic Stop; Sniff at a Search Warrant

United States v. Albriza (11th Cir. Florida 2022) 2022 U.S. App. LEXIS 32231 (Unpub.) – Traffic Stop; Prolonged Detention

$41,080 v. State (Mississippi 2022) 2022 Miss. App. LEXIS 417 – Traffic Stop; Contamination of Currency

United States v. Moore (Nebraska 2022) 2022 U.S. Dist. LEXIS 210626 – Traffic Stop; Prolonged Detention

Buell v. Commonwealth (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 662 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

Deaton v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 1302 – Traffic Stop; Prolonged Detention; Entry by K9 Into Vehicle

Commonwealth v. Aliek Quasim Carr (Pennsylvania 2022) 2022 Pa. Super. Unpub. LEXIS 2700 – Consent; Consensual Encounter; Entry of K9 into Vehicle

Ramsey v. Commonwealth (Virgina 2022) 2022 Va. App. LEXIS 574 (Unpub.) – Detention; Sniff is Not a Search

United States v. Lanier (Georgia 2022) 2022 U.S. Dist. LEXIS 203491 – Traffic Stop; Pretext Stop; Prolonged Detention

Adams v. City of Cedar Rapids (Iowa 2022) 2022 U.S. Dist. LEXIS 201792 – Tracking/Trailing Evidence; K9 Warning; Excessive Force; Qualified Immunity; Accidental Bite; Monell Liability; Negligence

United States v. Bradley (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 202723 – Reasonable Suspicion; Probable Cause Arrest Search; Alert as Probable Cause

United States v. Zayas (New York 2022) 2022 U.S. Dist. LEXIS 202701 – Traffic Stop; Reasonable Suspicion; Prolonged Detention; Reliability Foundation

State v. Teague (North Carolina 2022) 2022-NCCOA-600 – Package Sniff; Privacy Interest in Package in Commerce; Alert as Probable Cause; Odor of Marijuana as Probable Cause

State v. Guzman (Nebraska 2022) 2022 Neb. App. LEXIS 233 (Unpub.) – Traffic Stop; Prolonged Detention; Alert as Probable Cause

United States v. Smith (Louisiana 2022) 2022 U.S. Dist. LEXIS 199945 – Traffic Stop; Prolonged Detention; Reliability Foundation; Alert as Probable Cause

Cook v. City of Albuquerque (New Mexico 2022) 2022 U.S. Dist. LEXIS 200387 – Excessive Force; Invasion of Privacy; Unconstitutional Seizure; Bite of Civilian

Klaver v. Hamilton Cnty. (Tennessee 2022) 2022 U.S. App. LEXIS 30642 (Unpub.) – Traffic Stop; Prolonged Detention; Qualified Immunity

Ramsey v. Bossier City (Louisiana 2022) 2022 U.S. Dist. LEXIS 200982 – Excessive Force; Qualified Immunity


Baxter v. Robert (11th Cir. Florida 2022) 2022 U.S. App. LEXIS 33045
Traffic Stop; Prolonged Detention; Qualified Immunity

Baxter was pulled over for erratic driving by handler. Handler saw an open container and decided to write Baxter a warning citation for that violation. Baxter produced his license and said he would have to look for insurance and registration. Handler wrote the ticket but did not serve it. Instead, he ordered Baxter out of the vehicle so he could perform a sniff with his K9 partner. There was an escalation of the situation which ended in Baxter resisting commands both verbally and physically. Handler then arrested Baxter for obstruction. Charges of obstruction were later dismissed. Even though the K9 alerted, no drugs were found in the vehicle.

Baxter filed a federal §1983 civil rights and Florida state lawsuit. One of the theories was that handler unlawfully prolonged the traffic stop for the K9 sniff. Handler asserted qualified immunity as a defense.

The appellate court observed that the material facts were almost—but not entirely undisputed. On handler’s bodycam video, handler approached Baxter’s truck at the outset of the traffic stop. He informed Baxter that he was “all over the road” and asked for Baxter’s license, registration, and insurance. Baxter handed over his license and started looking for the other documents. While Baxter was rooting through his papers, handler noticed Baxter’s open beer can and told Baxter he “can’t have it in the car.” He then told Baxter, “I’ll let you work on that”—i.e., Baxter’s search for his registration and insurance—and returned to his squad car, where he called dispatch and ran a records check.

Handler then returned to Baxter’s truck, by which time Baxter had located his insurance card but not his vehicle registration. Baxter handed over the insurance card and told handler, “My truck’s registered but I just don’t know where I can see it (meaning the registration documents).” After a brief back-and-forth about Baxter’s travel plans, handler told Baxter to “just hang tight—I’m gonna write you a warning ticket and then I’m gonna walk my dog around the car.” Returning to his squad car, handler proceeded to type something on his computer—presumably, the warning ticket.

Handler did not print the ticket. Instead, he returned to Baxter’s truck and instructed Baxter to “turn the truck off and step back here to me.” This conversation ensues; Baxter verbally then physically resisted LE orders.

The court found that handler undertook additional actions that were unrelated to the purpose of the traffic stop and therefore not part of its “mission.” For one, conducting a dog sniff to search for drugs was not part of the traffic stop’s mission. Handler does not dispute that a dog sniff is a “measure aimed to detecting evidence of criminal wrongdoing” that is “not an ordinary incident of a traffic stop.” Further, handler’s related order for Baxter to step out of his truck so that he could conduct the dog sniff was not part of the traffic stop’s mission. It is clear from the bodycam video—or at the very least, a reasonable jury could certainly find that handler interrupted his ticket-writing process, returned to Baxter’s truck, and ordered Baxter to get out of the vehicle to ensure officer safety while he walked the dog around the car. Thus, handler’s order for Baxter to exit the vehicle was squarely a “safety precaution taken in order to facilitate detours” which were decidedly not part of a traffic stop’s baseline mission. Because neither the K9 sniff nor the order for Baxter to exit his vehicle were part of the traffic stop’s mission, those actions were justified only if they occurred “during an otherwise lawful traffic stop” but did not add time to the stop.

The court then found that a reasonable jury could conclude that handler’s order to exit the truck came after the stop’s mission either had or should have been completed. The video clearly depicted handler typing up the ticket but then, for reasons unknown, held off on delivering it. Based on the video, a reasonable jury could find that the ticket should have been issued (even though it had not actually been issued) by the time handler returned to Baxter’s truck and ordered him out.

The status of the final core task—checking Baxter’s registration—is less clear. The video does not definitively show whether handler had completed that part of the traffic stop when he ordered Baxter to exit his vehicle. Baxter had not yet located his registration, but it appears that handler had chosen to move on from the registration check. Importantly, handler told Baxter to “just hang tight—I’m gonna write you a warning ticket” after Baxter said his truck was registered but he “just d[idn’t] know where [he] could see it.” Based on these statements, a reasonable jury could find that handler had done all he planned to do with the registration check by the time he ordered Baxter to exit the vehicle. And if handler had done all he planned to do with the registration check, he was not authorized to prolong the stop beyond that point. The appellate court found that a reasonable jury could conclude that the tasks comprising the stop’s mission either had been or should have been completed by the time handler ordered Baxter to exit his vehicle for the dog sniff.

The court addressed handler’s assertions regarding the prolonged detention issue. The fact that a LE officer is able to remove occupants from a vehicle is rooted in officer safety, not an option to extend the traffic stop. Handler also claimed that because there was an open container, he had not finished with the mission of the stop. However, it appeared from the body cam that the warning citation was already finished and just needed to be printed and served on Baxter. Finally, handler argued that Baxter’s “refusal to cooperate” is what prolonged the stop. The court held that any resistance in this case was immaterial to the stop duration analysis because handler had already unlawfully prolonged the stop when Baxter resisted.

Once the court found that there was enough evidence for a reasonable jury to find that handler unlawfully prolonged the stop, the court did not have to address qualified immunity (once one prong is established, the doctrine is no longer applicable). The appellate court held that the Rodriguez case clearly established the doctrine of prolonged detention, so handler was on notice that his actions in this case with his K9 were unlawful.

Therefore, the appellate court held that there is a genuine dispute of material fact about whether handler unlawfully prolonged the traffic stop when he ordered Baxter out of his truck to conduct a K9 sniff. A reasonable jury could find that handler’s order to exit the truck came after the stop’s mission either had or should have been completed. If a jury finds that fact at trial, handler would have violated Baxter’s clearly established Fourth Amendment rights in taking that action and he would not be shielded by qualified immunity.

Note: This case is somewhat puzzling. I’m not sure why the court said that the order to have Baxter get out of the  vehicle was not a part of the traffic stop when the case law is clear that the mere fact of the traffic stop was sufficient to make occupants exit. They may have been addressing the timing of the order. I’m also not sure why handler believed there were controlled substances in the vehicle nor does handler explain why he didn’t continue to pursue the registration issue. Those are the other areas where handler could have shown there was either additional evidence to add to reasonable suspicion. Odd.

State v. Mitchell (Wisconsin 2022) 2022 Wisc. App. LEXIS 1091 (Unpub.)
Traffic Stop; Prolonged Detention

LE had information that Mitchell was dealing drugs over the period of several months and was hiding them on his person. LE saw Mitchell perform an unsafe turn and then rolled through a stop sign. When LE lit him up, he was observed stuffing something down his pants.

At the time of the stop, LE radio’d that he was stopping Mitchell. Handler was only a few blocks away and responded to the location. The K9 team arrived at the time that LE radio’d for a K9. The K9 team waited until LE obtained necessary documents from Mitchell and then had Mitchell exit while handler and K9 performed a sniff around the vehicle. The K9 alerted and paraphernalia and residue was found. This was all accomplished before the traffic stop investigation was completed.

Note: Pretty simple analysis. All LE were aware of Mitchell and his shenanigans so when he was stopped, back up and K9 rolled without waiting for a request. This then gave the K9 team plenty of time to perform a sniff as LE was continuing the traffic stop investigation. The other issue is that Mitchell was hiding cocaine in between his buttocks; he was arrested for possession based on what was found in the car, the K9 alert and the fact that he was “tightly clenching his buttocks.” He was later searched in an appropriately private manner.

United States v. Miller (4th Cir. West Virginia 2022) 2022 U.S. App. LEXIS 32834
Traffic Stop; Prolonged Detention

Traffic stop for equipment violation. LE wrote a warning citation and then had his K9 sniff the vehicle. Based on that alert, LE searched the vehicle and found contraband. Passenger Miller appealed the denial of his motion to suppress.

LE testified that driver took a long time to pull over and passed locations that were available for her to pull over. However, from the video, it appeared that she only took 17 seconds to pull over.

LE testified at the hearing that the driver’s hands were shaking. However, the body cam footage did not show any shaking. While she was searching for her registration and license she engaged in small talk with LE about her recent unpleasant experience at DMV. LE said if everything was good, he would give her a warning citation and she could be on her way. She said, “Thank you.” She also tapped her fingers on the car. In addition, LE testified that the road she was on was a drug corridor.

Back up arrived, but LE was already printing the warning ticket. After that, LE went back to the car, had the occupants exit and performed a sniff around the vehicle. When K9 alerted, a subsequent search revealed 2 guns in a back pack belonging to Miller, the passenger.

The appellate court established that the district (trial) court held that LE had reasonable suspicion to extend the traffic stop because driver was (1) slow to pull over, (2) excessively nervous, and (3) traveling on a known drug corridor. The district court gave great weight to LE’s experience in its analysis. It determined that driver was slow to pull over because she “passed at least one or two well-lit streets and parking lots in favor of a dimly-lit section of Route 7.” It further found that driver was excessively nervous because she was allegedly shaking during the traffic stop, talking excessively, and tapping her fingers on the outside of her car door. The district court also found that driver’s nervousness did not decrease after being told she would only receive a warning. Finally, the district court credited LE’s testimony that Route 7 was “a corridor commonly used to traffic drugs between counties.”

Here, however, the appellate court held, the video evidence did not support some of LE’s statements and impressions. First, driver was not unduly slow to pull over. Driver was even with the turn lane when LE’s lights first came on. She hit her brakes four seconds after his lights came on, activated her blinker three seconds after that, and stopped the vehicle a total of seventeen seconds after LE first activated his lights. In addition, while the district court found driver passed two opportunities to stop, the video belied that. Therefore, the appellate court found, the district court erred in finding that driver was slow to pull over. As for the nervousness, identified by LE and accepted by the district court, represented by shaking hands, talking about her registration and tapping her fingers on the car, did not indicate to the appellate court that these facts proved driver was overly nervous. Finally, the court held, that even if this was proved to be a drug corridor, in the absence of other facts, it could not be used to show additional reasonable suspicion to prolong a traffic stop to conduct a sniff.

The appellate court concluded, “Simply put, the factors articulated to support reasonable suspicion in this case do not “serve to eliminate a substantial portion of innocent travelers.””

Note: It appears here that the appellate court believed that the video of the body cam was in conflict with LE’s testimony. Once a court goes down that path, it rarely ends up making the officer look good. The court basically disregarded his testimony (although came up short in calling him a liar, which is good). The “serve to eliminate a substantial portion of innocent travelers” language appears to be applicable only to that circuit. The actual test ultimately must be whether there was sufficient reasonable suspicion of another crime or crimes to allow for the prolongation of the traffic stop to perform a sniff.

State v. Forsythe (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 751
Traffic Stop; Sniff at a Search Warrant

Local police were informed by state investigators that Forsythe was in a conspiracy to traffic narcotics, having intercepted phone calls and gathered evidence that he was selling from his home. A search warrant was obtained and executed. There were 11 cars on the property (search of vehicles was not included in the warrant). One was a Mercedes with no license plate which was parked between two vehicles registered to someone other than Forsythe. On the back seat were two safes. Handler had his K9 sniff the vehicle and the K9 alerted. Another search warrant was obtained with these facts along with the information LE was able to find that Forsythe owned the car. During the search of the safes, money and contraband was found. Indicia for Forsythe was found in the car.

Forsythe objected to the K9 sniff and alert, claiming LE did not have sufficient basis to have a K9 sniff the Mercedes, and without the alert, the search warrant for the car did not have probable cause.

The court found that, in Minnesota, a K9 can be deployed if the deployment is not only in response to mere whim, caprice, or idle curiosity, but supported by articulable, reasonable suspicion. The court went on to state that before the lead officer obtained a K9 sniff, he observed the car, with no license plates, parked between two other vehicles registered to Forsythe, and with two small personal safes located on the back seat. In the lead officer’s experience, people selling controlled substances often store them in small personal safes and “transfer titles for those vehicles they use” to transport controlled substances across state lines.

These facts, the court held, combined with the proximity to Forsythe’s house, which was already subject to a warranted search, demonstrate that the K9 sniff “was not the product of mere whim, caprice, or idle curiosity” but was supported by reasonable, articulable suspicion. Id. And the K9’s “alert,” indicating the presence of controlled substances within the car, was enough to support probable cause for the search warrant. In addition, because the K9 sniff was legal, the search warrant for the car was supported by probable cause and the evidence obtained from the search did not require suppression.

Note: Minnesota is apparently one of those states that require reasonable suspicion before a K9 can be deployed. This is a higher standard than the federal one (which California and other states follow). States are allowed to have higher standards as long as that higher standard does not violate the constitution (here it does not violate the federal constitution; the higher standard accrues to the benefit of a criminal defendant). Make sure you are in contact with your local prosecutor so that you know when and where you can deploy your K9.

United States v. Albriza (11th Cir. Florida 2022) 2022 U.S. App. LEXIS 32231 (Unpub.)
Traffic Stop; Prolonged Detention

Albriza was at a gas station with two other persons, one of whom was known to police as a local drug dealer. LE was also in possession of a tip that drug dealer was being supplied by a man matching Albriza’s description (white Hispanic male with tattoos). LE ran the plate on the vehicle and found that it was plated with a permit registered to another vehicle. When Albriza pulled out, LE followed. Albriza rolled through a stop sign so was pulled over.

LE told Albriza to exit and Terry frisked him. Albriza admitted that the car was displaying the wrong plate. He claimed to have lost the title to the vehicle and he could only produce an insurance card with someone else’s name on it. He also gave inconsistent information about the owner of the vehicle, first claiming he bought it from a friend (he only knew the first name of his friend) and then, after being informed that the car was registered to a female, claimed that was the aunt of the person he bought the car from.

Since the car was not reported stolen, LE told Albriza that he was going to issue three warning citations. LE asked questions about how Albriza came into possession of the car. While LE was completing these citations, back up arrived. LE handed over the citations to the back up and then ordered the rest of the occupants out of the car so he could run his K9 around the car. K9 immediately alerted to the vheicle. LE found a large amount of meth and fentanyl and a bullet.

Albriza conceded that the traffic stop was proper. However, he claimed that LE prolonged unlawfully the duration of the traffic stop (1) by frisking Albriza, (2) by asking questions about Albriza’s destination, (3) by asking questions about the car’s ownership after learning that the car had not been reported stolen, (4) by asking questions of Albriza while writing the warning citations, and (5) by failing to seek more assistance from the backup officers.

The appellate court held that LE did not improperly prolong the traffic stop. First, LE is permitted to conduct a brief pat-down search of Albriza’s person under an 11th Circuit rule officers conducting a traffic stop may ‘take such steps as are reasonably necessary to protect their personal safety,'” including “conducting a protective search of the driver”. Next, the questions asked by LE about destination and the car’s ownership were questions related reasonably to the purpose of the traffic stop.

The appellate court further held that the car had not been reported stolen did not resolve conclusively that Albriza was in lawful possession of the car. Given Albriza’s inability to provide proof of registration and Albriza’s conflicting answers about the identity of the person from whom he supposedly bought the car, LE’s inquiries about the car’s true owner — even after learning that the car was not reported stolen — fell within the scope of the traffic stop’s mission.

The appellate court also rejected Albriza’s argument that LE prolonged unlawfully the traffic stop by not delegating more tasks to the backup officers. The backup officers were called to the scene chiefly to avoid having LE outnumbered by the car’s three occupants: a purpose related to officer safety. The backup officers also assisted LE by escorting Albriza to retrieve his cell phone and by completing the written warnings after the K9 unit arrived. That LE performed many of the routine traffic-related tasks himself is no evidence that he failed to act “diligently” and “expeditiously.”

Albriza next challenges the district court’s separate determination that any prolongation of the stop was justified by reasonable suspicion of other criminal activity. The appellate court held that looking at the totality of the circumstances involved in this case, viewed in the light most favorable to the government, gave rise to reasonable suspicion that Albriza was involved in criminal activity beyond the initial traffic violation. LE had received an earlier confidential tip that a person matching Albriza’s physical description was supplying a known drug dealer with
methamphetamine. Albriza and dealer were then seen together in a high-crime area. Shortly after being stopped, Albriza confirmed that he was from Ocala: information that corroborated another detail from the confidential tip.

In addition, the court found that Albriza appeared unusually nervous during the stop. Albriza told LE that he was headed to dealer’s home but declined to identify dealer by name. Albriza also admitted that the tag attached to the car was not assigned to that car: a tactic LE recognized based on his training and experience as indicative of drug-trafficking or other criminal activity. Albriza was also unable to produce proof of ownership of the car and gave conflicting stories about the car’s owner.

Given these circumstances, the court held, an objective officer in LE’s position would have a particularized and objective basis to suspect that the car might be stolen and that Albriza was involved in drug-trafficking activity. Thus — even to the extent LE’s repeated inquiries about the car’s owner constituted questions aimed at investigating criminal activity beyond the initial traffic infraction — LE by then had reasonable suspicion to justify extending the stop to conduct further investigation. Those questions, thus, could not prolong unlawfully the traffic stop.

Note: The court addressed two avenues of admissibility; the sniff took place during the traffic stop without prolongation and if there was prolongation, for the sake of argument, LE had reasonable suspicion to extend for a K9 sniff. Always present as many arguments as possible for the evidence to be submitted. You never know what a court is going to do, so giving a court options is always a good strategy. Those options are then available to an appellate court if the case is appealed.

$41,080 v. State (Mississippi 2022) 2022 Miss. App. LEXIS 417
Traffic Stop; Contamination of Currency

Traffic stop was executed when LE saw a vehicle with an unreadable paper tag. Later, LE found out that the car had been stopped before with the actual license plate attached and the paper tag was put on after that stop (paper tags cannot be read by license plate readers). LE smelled the odor of raw marijuana when he approached the vehicle. LE also saw bundles of money in driver’s lap. After some less than truthful statements about his travels, driver admitted to a small amount of marijuana in the vehicle which was located in a book bag. During a further search of the vehicle, LE found $41,080 in the lining of a coat in the vehicle after driver said there was no additional money in the vehicle. The vehicle had been registered to driver a few days prior. At the station, the cash was put in a box and three other boxes were presented to K9. K9 alerted to the box with the currency.

LE witnesses at trial indicated that based on their training and experience, driver was a drug courier who had picked up cash after delivering narcotics. Driver testified the money was his and earned it as a bartender or beer vendor and had been paid in cash. When questioned about why some of the money was vaccuum sealed, he had a nonsensical answer. He claimed he lied about the cash because he had not paid taxes on it.

The trial court was unimpressed with driver’s testimony and told him on the record that he had no credibility at all and found that the money was proceeds from drug trafficking.

Driver appealed on several theories, but this review is only concerned with the K9 participation. Driver claimed on appeal that the seized funds were contaminated by LE before the sniff. At the police station, four cardboard boxes (three empty and one with the currency) were placed around the office by LE. Handler’s K-9 was then allowed to sniff the boxes. K9 detected the $41,080 in one of the boxes, signifying a presence of drugs on the money. Handler testified that he had no knowledge as to where the boxes were taken from or what had been in the boxes.

This Court previously has determined that “there is some indication that residue from narcotics contaminates as much as 96% of the currency currently in circulation.” The supreme court subsequently rejected this “currency contamination” theory, however, and instead adopted “the Seventh Circuit’s sound reasoning . . . that K9 alerts to currency are entitled to probative weight.” Driver agreed that the K9’s alert “was entitled to probative weight,” but he also contends that the “contamination theory is applicable because the K9 alert was coupled with other persuasive evidence, namely the random four boxes that were found somewhere in the police station.”

The court found no merit to driver’s argument. A certified K9 trainer, testified at trial that there was no “study” or “foundation” to support “that currency is littered with traces of drugs.” He further clarified “that if we take money that is contaminated, within a few days that contamination is gone. So it has to be something that is fairly recent for the dogs to – for it to trigger an alert in the dogs.” There was no evidence presented that the empty boxes were contaminated, and we find nothing to suggest that the “free air sniff” done by the K9 was improper in this instance. It was simply one factor, entitled to probative weight, for the court to consider in the totality of the circumstances.

Note: The theory that 96% of American currency is contaminated by narcotics has been debunked at least in this state because the K9s alert to a metabolite of cocaine which dissipates quickly. Therefore, only recent exposures to drugs will cause a K9 to alert to currency. The contamination theory was interesting in that the driver’s attorneys did not produce any evidence of contamination. Keep in mind that he could have demanded discovery of where LE got the boxes and if LE couldn’t produce them or at least indicate where he got them and that he never touched the narcotics, then driver might have had a decent argument. The best practice is to have a completely different officer set up the boxes for the K9, describe where he got the boxes (empty copier boxes that came from a part of the station that does not have exposure to narcotics, for example) and then let K9 team sniff. The sniff should take place in an area that is not contaminated with prior controlled substances (not the evidence room, for example). That way, there is no question about contamination.

United States v. Moore (Nebraska 2022) 2022 U.S. Dist. LEXIS 210626
Traffic Stop; Prolonged Detention

LE stopped a car for expired registration in a high crime area. Lopez, the driver, only rolled his window down 1/4 of the way. Lopez said the vehicle belonged to his incarcerated girlfriend. Lopez was nervous, did not make eye contact and was pale. Lopez could only produce identification but not a valid driver’s license. Moore was the passenger and told LE he only had a vaccination card for ID, but gave his name, date of birth and address. It was too dark to tell if Moore exhibited nervousness. Lopez said they were going to see a friend, but it was 4:30 in the morning and dark and cold. Lopez could not provide an address for this friend.

LE found out from running the information on both occupants that both occupants were gang members with extensive histories of drugs and guns; the car had expired registration; and that Lopez was a potentially violent offender and that Moore had prior violent offenses. LE called for back up at that point and also called for a K9 team. LE removed Lopez and Moore and patted them down. One LE saw an open container of alcohol (a misdemeanor offense) when the occupants got out. No one claimed the alcohol and at that point, the K9 team arrived. LE conducted a search of the vehicle for alcohol and found no additional alcohol, but found narcotics packaging. The K9 then conducted a sniff and alerted. A further search of the car revealed a meth pipe, a backpack with a Glock magazine and ammunition and Moore’s vaccine card. Lopez was arrested but Moore was released as LE erroneously thought that possession of the ammo was a federal offense and no federal officers were available.

The appellate court agreed with the trial court’s conclusion that LE had the requisite reasonable suspicion to prolong the traffic stop—and Moore’s detention—to conduct a K9 sniff search.

LE lengthened the traffic stop to allow a sniff-search after he located several hundred self-sealed two-inch-by-two-inch baggies under the driver’s seat that LE testified were commonly used to distribute narcotics. LE’s discovery came after a host of suspicious behavior during the traffic stop. First, Lopez’s statement that the vehicle belonged to his girlfriend—who he claimed was incarcerated in Utah—his vague explanation that he and Moore were travelling to see a friend at an unknown address, and Lopez’s nervous behavior, are factors supporting reasonable suspicion that can justify a traffic stop’s extension. After returning to his cruiser, LE discovered that both Lopez and Moore were gang members with extensive criminal histories, which included drug, firearm, and violent offenses. Before issuing the citation, LE spotted an open bottle of alcohol in the vehicle. Thus, before LE had finished with the routine tasks of the traffic stop, he had been confronted with several articulable facts that support reasonable suspicion.

Note: While the stop was longer than a regular traffic stop, there was enough information gathered by LE to extend the stop to include a K9 sniff. It might have been strategically better to wait for the K9 alert prior to searching the vehicle at all, but the court did not seem to be concerned with that.

Buell v. Commonwealth (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 662
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

Lexington LE was working a drug investigation which included information from a “qualified confidential informant” who said that Wesley would be returning to Lexington with a large quantity of heroin. The CI also had a description of the vehicle Wesley would be driving and Wesley’s scheduled departure. Task force agents asked a marked unit to conduct a traffic stop to avoid revealing the CI’s ID. Units ID’d the vehicle and watched it fail to properly stop at an on ramp to the interstate and not signaled a lane change. Another officer overheard that on the radio and pulled the car over. The driver was Buell and Wesley was the front seat passenger. After obtaining information from both occupants, LE called in the information as his computer was not functioning properly. Meanwhile, other officers were talking to the occupants: Wesley commandeered the conversation which was unusual; Buell seemed very nervous; and the car was a rental. They also made conflicting statements about their travel that day. These facts, combined with the fact that LE had information that Wesley was transporting dope, added up to reasonable suspicion to extend the traffic stop to have a K9 sniff the vehicle. The K9 team arrived while LE was still waiting to hear back from the dispatcher. The K9 alerted on the car, and there were large amounts of narcotics found in the trunk and the center console. Later, LE found that Wesley had a large baggie of narcotics similar to those in the car tucked into his buttocks.

Occupants first complained that the uniform officer did not have personal knowledge of the drug investigation so he could not use that information to form additional probable cause to extend the traffic stop. However, the appellate court held that the sharing of information by overhearing it on the radio between the task force members and the uniform officer was sufficient to meet the collective knowledge doctrine.

Then, occupants alleged that even if the stop of the vehicle was proper based upon collective knowledge of the officers, it was impermissibly extended to allow for the K9 sniff. The appellate court found, however, it was unnecessary to determine if this allegation has any merit because, at this part of the interaction, the court found probable cause to stop and search attained by virtue of the drug investigation. Once LE had the identifications of Wesley and Buell and had verified that Wesley was in the vehicle, as the informant described, down to the license plate number and state, the police then had sufficient probable cause to extend the encounter to conduct a proper search as part of a drug investigation based upon the information generated by the informant.

Note: Collective knowledge doctrine requires at least some communication of the actions of the suspect that incriminate him/her. Overhearing radio traffic in this case was sufficient here (one officer observed the traffic violation and other pulled occupants over).

Deaton v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 1302
Traffic Stop; Prolonged Detention; Entry by K9 Into Vehicle

Traffic stop for failure to properly signal a turn at 1 a.m. Deaton was the driver and registered owner of the vehicle. She was overly nervous. There was a passenger as well in the front seat. After gathering the information needed, LE returned to his cruiser to start running the information. He found out that both occupants had prior criminal charges relating to methamphetamine. LE then asked Deaton to step out of the vehicle to ask her about these charges (LE was still waiting on registration confirmation). She denied anything in the vehicle and also denied consent. LE sent her back to her car while he started to write up a warning for the signal violation.

LE also called for a K9 team. The K9 team arrived when LE was still working on the warning. LE was having difficulties with his on board computer and also had a lot of information he had to gather from different sources to complete the warning. Handler asked the occupants to step out while the K9 sniffed the vehicle. They complied and the K9 almost immediately alerted on the car. Then K9, tryng to find the source of the odor, stuck his head and half his body inside the car through an open window. Handler removed K9 from the car.

After the alert, LE completed the warning. LE searched the car pursuant to the alert. Methamphetamine was found.

The appellate court dismissed the challenge to the traffic stop itself, finding that there was sufficient cause to stop the vehicle.

The court then addressed the issue of prolonged detention. Deaton claimed that the manner in which LE executed the traffic stop—in particular, his returning to the vehicle to ask Deaton about her criminal history—unreasonably delayed the stop and the issuance of the warning ticket. Deaton continued that, had LE acted more efficiently, the traffic stop would have been over before K9 arrived and alerted to the presence of narcotics in her car.

The appellate court held that Deaton’s argument was speculation. LE conducted the stop within the time reasonably required to complete the stop’s mission. There was nothing inappropriate or unreasonable about LE returning to Deaton’s vehicle to ask her about her criminal history and for permission to search the vehicle. And, while LE was still working on the warning ticket for the traffic infraction, K9 arrived and alerted to the presence of narcotics, which provided the officers with new support to extend the stop. Thus, LE did not unreasonably prolong the traffic stop under the Fourth Amendment.

Last, Deaton asserted that LE violated her Fourth Amendment and state constitutional rights when K9 conducted “a sniff of the interior” of her vehicle. But, the court found, Deaton’s argument misconstrued the record. The facts in support of the trial court’s judgment made clear that K9 alerted during an exterior search of the vehicle, which Deaton acknowledged did not implicate her constitutional rights. Deaton cited no authority for the proposition that, after a K9 has alerted to the presence of contraband in a lawful search, the K9 then violates the search-and-seizure rights of the vehicle’s owner by trying to get inside the vehicle. Neither does Deaton cite evidence in the record to support her premise that K9’s post-alert actions mattered to the officers’ ensuing search of her vehicle. Rather, the court agreed with the State that K9’s “excitement at the odor of over two-hundred grams of methamphetamine emanating” from inside the vehicle “may have led K9 to overreact,” but it did not “convert the exterior sniff” into an interior search. The court therefore concluded that Deaton has not met her burden on appeal to show a violation of her federal or state search-and-seizure rights on this issue.

Note: Here, the K9 alerted prior to the dive into the car. This situation then does not implicate the rules about entry into the car, because at the time of the dive, K9 had already alerted which provided probable cause. Remember, alert behavior is an alert even if there is no final indication (be prepared to defend that in court, however). When a K9 jumps in without first alerting, then the court will look at whether there was any action by LE to facilitate the jump. If not, then you’re fine; just get the K9 out of the car and continue the sniff. LE opening doors and windows and then leaving them open will be considered LE action that facilitated the K9 entry into the car. Therefore, to remove this argument, the best practice would be to shut all windows and doors and do the sniff of the vehicle free air.

Commonwealth v. Aliek Quasim Carr (Pennsylvania 2022) 2022 Pa. Super. Unpub. LEXIS 2700
Consent; Consensual Encounter; Entry of K9 into Vehicle

LE was working alone in a high crime area. He noticed a heavier-set black male with a noticeable limp, later identified as Carr, pumping gas into a vehicle with Illinois license plate. Carr looked over at LE multiple times, and walked over to a nearby white van and began talking to an occupant. LE knew that a male matching Carr’s description recently fled from a narcotics-related stop with a fellow officer. LE interpreted Carr’s movement toward the white van as an effort by Carr to separate himself from the vehicle bearing the Illinois license plate. LE parked in such a way as to not block Carr’s vehicle, and walked over to Carr. LE asked Carr “what was going on and what he was doing in the area.” Carr gave LE his ID card from Pennsylvania, which had a Pennsylvania address.

LE ran Carr and did not find any warrants so returned the ID card. Carr then finished pumping gas as LE continued to ask him questions. Carr confirmed that the vehicle was a rental. During the interaction, LE did not do anything that would have indicated Carr was not free to leave. LE then asked if Carr had anything illegal on his person. Carr began digging through his pockets, which LE asked him not to do. While Carr was digging through his pockets, LE observed a pocketknife, a second cell phone, and an unknown amount of currency. LE asked why Carr had two cell phones and asked if there was anything illegal in the vehicle.

LE then asked for consent to search, which Carr granted for the driver’s side of the car, but then withdrew consent prior to LE searching. LE then called for a K9 team and informed Carr of this. LE’s purpose in requesting a K9 team was that Carr was in a high drug trafficking area; he matched the description of a person that had previously fled a narcotics stop; Carr had two cell phones; the currency; and the fact that the car was a rental. All of these things indicated to LE that there was additional reasonable suspicion to detain Carr to wait for a K9 team. Carr then re-granted permission and LE only found what arguably could be packaging materials.

The K9 team arrived and alerted to the rear portion of the middle console of the vehicle. LE then found oxy pills.

The first issue was that Carr complained that he was subjected to an investigative detention when he was questioned by LE prior to LE calling for a K9 team. However the court found that LE had reasonable suspicion to detain Carr pending the arrival and deployment of K9.

The court then addressed Carr’s consent after being informed that a K9 team was going to be called. Carr initially provided consent but limited the search to the driver’s side of the vehicle. Carr then withdrew this consent. LE next informed Carr that a K9 would be requested. Thereafter, Carr provided consent to search his vehicle without limitation as to the area to be searched or the method by which the search would be conducted. The court held that the record supported a finding that at the time Carr provided consent to search his vehicle, a reasonable person in Carr’s position would have been aware that a K9 may be employed in a search of the vehicle. Therefore, the K9 sniff of the interior of Appellant’s car was within the scope of consent voluntarily provided, and Carr’s challenge is without merit. Because a K9 sniff of Appellant’s vehicle fell within the scope of the consent provided, the discovery of, and seizure of, the prescription bottle, which bore a label indicating Appellant’s name and contained a controlled substance, was constitutionally sound.

Note: This court kept referring to a K9 sniff as a K9 search. A good lesson in using language discipline in your reports and testimony. Here, the consent was important because apparently, the handler immedidately put the K9 inside the car. If consent had been found not to have been given, LE would have been in a bad position. Taking the K9 around the car first in a traditional sniff of free air would probably have resulted in an alert. This would have provided probable cause to sniff and search the interior. Once again, additional avenues to admissibility is always better. This is also a good place to mention that consent is a tricky thing; consent can be limited and/or withdrawn by a suspect at any point. 

Ramsey v. Commonwealth (Virgina 2022) 2022 Va. App. LEXIS 574 (Unpub.)
Detention; Sniff is Not a Search

LE was running license plates of vehicles leaving a gang member’s funeral. Ramsey’s brother was found to have a warrant when his plate was run. Ramsey, in a different car, was found to be suspended. Brother pulled into a gas station followed by Ramsey. LE was told by the surveillance officer that brother had a warrant but did not tell him that he knew Ramsey had a suspended license. LE pulled into the gas station but did not block Ramsey’s vehicle. LE approached brother and informed him he was detained due to the warrant. Ramsey asked if he could drive brother’s car from scene and LE told him to wait until the warrant was confirmed. Brother asked if Ramsey could stay and LE said he didn’t mind if they hung around. Other officers arrived and informed Ramsey he had a suspended license. Despite having had no interaction with LE except the fact that LE said he didn’t mind if Ramsey hung out and that they knew he had a suspended license, Ramsey felt he could not leave and called his girlfriend to come get him.

The K9 team arrived and Ramsey was asked to step away so that K9 did not bite him. The K9 alerted to the car Ramsey was driving and a firearm was found. When Ramsey was detained, he admitted to possession of a small amount of marijuana.

It should be noted that, prior to the sniff,  Ramsey and his passenger walked from the scene to make phone calls and buy stuff at the gas station store. Ramsey was allowed to take things from the vehicle. Passenger ultimately walked away from the scene.

The court addressed whether Ramsey was detained and found that LE was focusing on brother and his warrant. No weapons were displayed or physical contact made. No documents were requested by LE and his movements were not restricted. Some LE engaged in conversation and one LE told him that his license was suspended. Ramsey at one point said he had smoked marijuana earlier and LE told him he was not concerned about that. The only movement that was directed by LE was to request Ramsey move away from the car so the K9 would not be able to bite him. Ramsey’s own actions indicated that he knew he was free to leave because he called his girlfriend to come get him. Therefore, the contact with Ramsey was consensual.

The court held also that the use of the K9 does not affect the outcome of our analysis. Handler did not make physical contact with Ramsey or try to restrict his movement in any way after telling him the K9 was going to sniff his car. Though handler asked Ramsey to move away from the vehicle, Ramsey himself testified that this was because the handler did not want Ramsey to be in danger from the K9. There is no evidence that any of the other factors—display of weaponry, the officers’ language or tone of voice, or retention of appellant’s documents—changed based on the decision to have the K9 sniff appellant’s vehicle. Nor is there evidence that Ramsey was instructed to remain at the scene once the K9 arrived or began its work. In fact, Ramsey called his girlfriend while the K9 was being deployed and said, “I need you to come get me.” This statement indicates that Ramsey did feel free to end the police encounter and go about his business. Moreover, any suggestion that the K9’s free air sniff converted the incident into an illegal search is contrary to Virginia law, because a sniff is not a search.

Note: The only issue here is whether Ramsey was detained prior to the K9 sniff, because if he was detained, then there would have been a prolongation argument. There is no 4th Amendment violation when there is no unreasonable search or seizure. The court confirm that the K9 sniff was not a search and without a detention, there was no seizure. Therefore, no 4th Amendment violation occurred. 

United States v. Lanier (Georgia 2022) 2022 U.S. Dist. LEXIS 203491
Traffic Stop; Pretext Stop; Prolonged Detention

Traffic stop of Lanier for failing to stop at a stop sign. LE testified this stop was routine and not tied to another investigation. However, other LE had Lanier under surveillance and LE knew about it (at least a couple of months prior). A CI told LE that (1) drove a white Dodge Charger with black accents; (2) currently sold narcotics in the Pine Street neighborhood and had been doing so for a long period of time; and (3) was always in possession of narcotics.  In addition, CI said he had recently bought narcotics from Lanier. When stopped, Lanier was driving a white Charger with black accents.

LE approached the Charger and Lanier said that the windows did not roll down. A 13 year old boy was a passenger and the Charger was full of personal possessions which Lanier explained by saying his SO just kicked him out. Lanier was excessively nervous and sweating profusely. There were 3 open beer cans and LE smelled alcohol on Lanier’s breath. LE then started his routine to investigate a DUI, which included calling a DUI certified officer and, when Lanier refused consent to search the Charger, LE also call for a K9 team. LE found out that Lanier’s license was suspended.

The K9 team arrived while LE was in the process of completing his two traffic-related tasks; citations for a suspended license and for failing to stop at the stop sign. The team arrived about 6 minutes after the call from LE.

Handler ran the K9 around the vehicle. The K9 alerted by sitting. LE searched the vehicle and found a handgun behind the center console, in reach of the passenger and driver’s seat, and cocaine and digital scales inside a shoebox in the back seat. Ultimately, LE did not issue citations for either traffic offense.

The appellate court first determined that the LE witnesses were credible as they testified in a thoughtful, candid, and consistent manner; their testimonies withstood scrutiny on cross examination, and there were no material discrepancies between their testimony and the evidentiary record.

The court went on to hold that the traffic stop was justified. Running a stop sign is an appropriate reason to stop a motorist. Lanier complained that this was really just a pretextual stop where LE was looking for any reason to stop Lanier. LE denied that, but in any event, the court held, the subjective intent of LE is irrelevant when there is a valid reason to stop a motorist.

However, the appellate court also held that LE diverted from the initial purpose of the traffic stop to ask Lanier for consent to search the vehicle, and to request via dispatch for a K9 unit after Lanier denied consent. Even though LE immediately returned to ordinary duties related to the traffic stop for the six minutes that it took for the K9 unit to arrive, the Court is still required to determine whether this momentary diversion to ask for consent and request a K9 team impermissibly prolonged the stop. As explained below, the diversion did not violate Lanier’s constitutional rights because LE nevertheless had reasonable suspicion of drug trafficking based on the CI’s sufficiently reliable tip.

Generally, a tip from a known criminal informant who is cooperating with LE requires less scrutiny because LE can assess the informant’s reputation and character and hold the informant responsible if his or her allegations turn out to be fabricated. The appellate court found here that the CI falls within this category. LE testified the CI had, in the year preceding the tip concerning Lanier, developed a strong relationship with the police department by regularly providing accurate and truthful information concerning violent crimes and drug trafficking in the relevant neighborhood. LE thus had a firm foundation for his unequivocal opinion that the CI tells the truth and can be trusted to tell the truth about other things, including the claim that the object of the tip is engaged in criminal activity. In addition, the CI’s information was bolstered by the fact that CI admitted to purchasing recently from Lanier.

The court went on to hold that even if the situation here required more scrutiny and independent verification of the tip, LE was able to corroborate key facts from the tip before asking for consent to search the vehicle. Indeed, Lanier was driving the same vehicle described by the CI while leaving the very neighborhood the CI identified as his drug territory.

Therefore, the CI’s tip provided LE with reasonable suspicion of drug trafficking to extend the traffic stop while he asked for consent to search the vehicle and requested a K9 unit. LE immediately returned to completing tasks associated with the traffic stop during the six minutes it took for the K9 unit to arrive. Even if he had not resumed those activities, reasonable suspicion made the request and subsequent wait for the K9 unit proper under the Fourth Amendment.

Note: The appellate court here held that a momentary diversion from ticket writing duties was enough to trigger prolonged detention (asking for consent and calling for a K9 team). That’s the not so good news from this case. The good news is that there was sufficient information about Lanier being a drug dealer that there was sufficient reasonable suspicion to detain Lanier longer than a traffic stop would require, at least until a K9 arrived and completed the sniff.

Moreno v. Lindblade (Michigan 2022) 2022 U.S. Dist. LEXIS 204211
Civil Rights Violation; K9 Presence at Search Warrant Scene; Qualified Immunity

This case was about Moreno’s brother being allegedly involved in a scheme to impersonate a Saudi Prince to defraud investors in a hotel. Moreno’s home was believed to house certain documents regarding this scheme. LE obtained a search warrant and searched Moreno’s home. The parties dispute that a knock-notice was given, but agreed that Moreno was at or near the entrance when LE breached the front door. Moreno ended up on the floor (he either fell or was pushed) and was then handcuffed, pulled to his feet and sat in a chair. Moreno remained handcuffed for the 2-3 hour search. Moreno was questioned about narcotics, even though the search warrant did not mention narcotics. About $3K in cash was seized but released to Moreno a few days later.

There was a K9 team present at the search warrant site. This caused the appellate court some concern. The LE agent sued was the one who sought and executed the warrant (lead officer). Moreno appeared to allege that LE is individually culpable in his capacity as the lead officer or responsible under a duty to intervene theory. Moreno attempted to infer from the status that lead officer was responsible for the decision to have a K9 unit on scene and further extrapolates that it is reasonable to attribute the conduct of the officers in verbalizing their search for narcotics to Moreno’s debriefing.

However, in his attempts to connect lead officer to the presence of the K9 unit, Moreno fails to squarely address what clearly established right had been violated. A K9 sniff is not a search unless the K9 is not in a place where a K9 can lawfully be. An important consideration is whether the K9 was lawfully entitled to be where it was when alerting. Here, Moreno took the position, without any legal support, that the K9 unit should not have been on scene because the scope of the warrant did not include a search for narcotics. Moreno would essentially have the court find that the Fourth Amendment clearly establishes a right to have a search conducted without a K9 unit where narcotics are not involved. The appellate court rejected that argument.

Moreno’s argument first and foremost ignored the myriad uses for K9 by law enforcement, including officer safety and alerting to the unknown presence of others in an area to be searched. It is also devoid of evidentiary support. Beyond Moreno’s conjecture that he saw the K9 sniffing in various rooms, which was informed in part by apparent hearsay from unnamed officers asking him about the presence of narcotics, there is no record evidence that handler was in fact performing a narcotics search with his K9. In addition, Moreno did not name handler as a defendant.

In summary, the appellate court held, Moreno failed to establish that a genuine issue of material fact exists as to whether his constitutional rights were violated by lead officer’s individual conduct during the search of his residence. Moreno has also failed to establish that a reasonable officer would be aware of a clearly established right to not have the presence of a K9 during a non-narcotics-based search. As such, lead officer is entitled to qualified immunity on the portion of Moreno’s claim with respect to an unlawful search.

Note: This was an interesting case in that a K9 was present, even though there was no indication that the investigation was targeting drugs or trafficking in drugs. However, this case recognizes the many benefits of a K9 team being present at a place where LE is lawfully allowed (in this case, a search warrant scene). It also confirmed that a sniff is not a search even if such a sniff was performed. This case was poorly pleaded and poorly investigated by Moreno’s attorney, but it did get us a case where K9’s usefulness is underlined. Language from this case should be used by DDAs in responsive pleadings.

Adams v. City of Cedar Rapids (Iowa 2022) 2022 U.S. Dist. LEXIS 201792
Tracking/Trailing Evidence; K9 Warning; Excessive Force; Qualified Immunity; Accidental Bite; Monell Liability; Negligence

Cedar Rapids PD train their K9s to bite anyone they encounter while engaged in a track or search without a prior command or alert. CRPD policy provides that “[c]anines will not deploy on offenders who are known to be juveniles, unless the juvenile is a suspect who is violent, thought to be armed, or is suspected of committing a serious misdemeanor or above offense.” Policy also requires that K9 warnings be given prior to release and made a distinction in allowable actions between deployment against a fleeing subject and deployment in a structure.

A.H. 13 year old boy ran away from home and was staying at the home of a friend, L.E. (both juveniles). On the same night, a convenience store was burglarized by unknown subjects. LE was dispatched to the area in the early morning hours. LE noted a blue car in the parking lot of a sister store with its lights off. LE saw there were several occupants in the vehicle. LE approached and the car left the parking lot. There was a chase and the car ultimately hit a tree and all the occupants scattered. The driver was caught and found to be in possession of a handgun. All LE were informed that driver was armed with a handgun. The driver also ID’d the other occupants and LE knew those two had criminal firearm histories.

K9 teams were called out to assist. A homeowner told LE she saw people running through her backyard. One handler used his P.A. system to give a K9 warning as required by policy. Another K9 handler gave another announcement over his P.A. system. A K9 team started at the crashed vehicle and handler deployed K9 on a 15 foot lead. This handler did not make any announcements or warnings. K9 found the scent and followed it. Again, handler did not make any announcements. Another loudspeaker K9 announcement was made, again directed at the criminals. LE saw a person hiding underneath a car and commanded him to come out or a K9 would retrieve him. He surrendered and was determined to be one of the outstanding suspects.

The K9 team continued their track for the last suspect. The team approached a trailer about 200 feet from where the second suspect was captured. No additional warnings were made. K9 engaged a subject under the trailer and bit him on the arm. It turned out to be A.H. K9 was released after 20 seconds and confirmation that there was nothing in A.H.’s hands. It turned out to be a minor bite only treated by antibiotic ointment. He also had three counseling sessions and the bite caused a large scar due to keloid development.

Here, it is undisputed that handler did not personally give any K9 warnings. It is also undisputed that K9 apprehended A.H. by biting his upper arm and holding him for approximately 20 seconds. Further, contrary to handler’s argument that a warning was not given due to officer safety, the other K9 officers on the scene, who had the same information and same safety risks as handler, gave four K9 warnings. Additionally, to the extent that handler argues that A.H. should have heard the warnings given by the other officers, this argument was unavailing on summary judgment because it was a disputed fact. Viewing the evidence in the light most favorable to A.H., the appellate court found that “a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender.” Thus, because there is a fact question regarding whether A.H. was unreasonably seized when he was apprehended by handler’s police dog, who bit and held A.H.’s upper arm for approximately 20 seconds without warning, summary judgment is precluded on A.H.’s Fourth Amendment excessive force claim. The adequacy of the K9 warnings that were given by others is a question of fact to be considered by the jury.

The appellate court then considered whether qualified immunity applied. Since the court already found that a fact question exists as to whether A.H. was deprived of a constitutional right—excessive force in violation of the Fourth Amendment from a K9 bite, where handler failed to give a warning before releasing his dog that was trained to bite and hold. The court also held that since there were previous cases where it was found that failure to warn resulted in an unreasonable use of force, handler had fair warning that releasing his K9, trained in the bite and hold method, without adequate warning comprised unconstitutional conduct. Therefore, qualified immunity was not available to handler. In addition, although the injury was much less that it could have been, the injuries showed that the force used could have been excessive.

The court then held that a strict liability theory was unavailable here (owner of a dog that bites is strictly liable for damages) because this was a K9 on a commanded track who was performing as per his training. Therefore, the strict lability state statute did not apply. In addition, there was no negligence claim legally because deployment was a discretionary function, and not one where the K9 escaped for example. Finally, Monell liability was dismissed from the case as A.H. had not pled enough facts to continue with the allegations.

Note: Remember, in a situation like this, the warnings are for the curious civilians who are out and about trying to rubber neck as well as suspects. This behavior is very common and therefore very predictable by K9 handlers. Here, the warnings were only to the criminals and did not address the civilians. If your policy does not address that, there should be a discussion with your superiors about whether warning civilians to stay inside would be necessary and, if so, in what circumstances.

This case also goes through a good analysis of many of the different ways you and your agency can be held liable, even for an accidental bite. There should be some remedial training to have the handler conducting the track give announcements. While the court casually dismissed the handler’s assertion that he didn’t give a warning for officer safety reasons since the other handlers gave announcements, the court didn’t take into consideration that the handlers making the warnings were not the one up against finding a potentially armed suspect who did not want to be caught. These are two significantly different positions and those differences should have been made clear on the record.

United States v. Bradley (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 202723
Reasonable Suspicion; Probable Cause Arrest Search; Alert as Probable Cause

Bradley was the target of a drug trafficking investigation based on information from a CI that he regularly transported cocaine from Pennsylvania to Maryland in his red Prius using back roads. Bradley also had two sales priors. LE spotted him as predicted and followed him from his Pennsylvania home to Maryland. Bradley pulled into a feed store parking lot and remain in the car. A sedan drove up and the passenger got into Bradley’s car for about 30 seconds and then got back in the sedan and both cars left.

Bradley was followed and pulled over for speeding. Bradley confirmed that he had traveled from Pennsylvania to Maryland, but refused to say if he stopped anywhere. About 6 minutes into the stop, a K9 alerted to the vehicle. The vehicle did not contain any controlled substances. Bradley was arrested and pat searched; he appeared to LE to be concealing something in his crotch and was strip searched at the jail. He was found to be in possession of a large amount of cocaine packaged for sale.

Bradley filed a motion to suppress. The appellate court held that LE had reasonable suspicion to suspect Bradley was engaged in drug trafficking and therefore had the reasonable suspicion to stop and detain him to investigate the drug trafficking. This was based on the CI’s tip, Bradley’s criminal history, and Bradley’s actions that day. Here, the confidential tip was sufficiently reliable because it provided several accurate identifying details about Bradley, furnished intimate details of his cocaine distribution routines, and accurately predicted Bradley’s conduct. The tip accurately identified Bradley’s name and home address, as well as the make, model, and color of his vehicle, and officers verified these details prior to initiating surveillance. The source additionally related “insider” facts including Bradley’s practice of transporting cocaine packaged for sale in his underwear. The source accurately predicted Bradley’s future behavior by identifying the specific time and day of the week that Bradley would leave his home alone in his Prius and drive the back roads toward Baltimore. The source further reported that Bradley would stop along the way, in locations such as shopping centers, to sell cocaine to customers near Parkville. The court rejected Bradley’s attempt to separately explain each factor away without considering the totality of the circumstances.

The appellate court held that here, officers had probable cause to arrest Bradley and search his vehicle and person incident to the arrest. Officers attained probable cause when K9 alerted to the odor of (what was probably) cocaine on the vehicle’s exterior. A reasonable officer could have concluded that K9’s alert at the driver’s door, where Bradley had just been sitting for approximately thirty minutes, further corroborated the tip that Bradley transported cocaine on his person, even though Bradley himself was outside of the vehicle when K9 indicated. Under these circumstances, officers had probable cause to arrest Bradley and to search his person and vehicle. The same analysis applied to the strip search.

Note: This is not a surprising result but there are some really good points to take away from this case. One is that the court extrapolated that the K9 could have alerted to the driver’s side of the car because Bradley had recently been sitting there with cocaine in his pants. In addition, they went directly to the reasonable suspicion of the trafficking rather than talk about the speeding. While there was no problem with the stop as a traffic stop, the trafficking investigation was a much more solid avenue of admissibility. Remember, we only need one avenue of admissibility, but putting on proof of multiple avenues of admissibility is always good practice.

United States v. Zayas (New York 2022) 2022 U.S. Dist. LEXIS 202701
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Reliability Foundation

LE was conducting drug trafficking from New York to New England. Vehicles were identified via plate readers, which provided criminal history reports on vehicle owners. Zayas’ gray Equinox made at least 9 different trips from Massachusetts to New York in a few months, In addition, some of the trips had a turn around time of less than an hour. The vehicle also had 30,000 miles added in one year, which is double the average of yearly mileage for personal cars. Zayas was also found to have a prior felony conviction for trafficking and prior arrests for trafficking and assault and battery with a weapon. Zayas sold his previous car to a repeat trafficking felon.

Zayas was observed changing lanes without signaling, illegally passing and driving 15 to 20 mph over the speed limit. LE pulled him over. LE asked Zayas for his paperwork which he provided. Zayas also got out at LE’s request. Zayas claimed he was going to see his aunt in the hospital, but he couldn’t remember the name or the location. LE then asked more questions about Zayas’ life in Pennsylvania as another officer looked through the windows of the Equinox. About 4 minutes after the stop began, LE told Zayas to wait and if everything checked out, he would not get a ticket. Six to seven minutes later, LE came back to Zayas and asked if Zayas had any contraband in the car, which Zayas denied. LE then asked for consent to search; Zayas responded with questions of his own, then said “do what you have to do” and “it’s not going to go any other way.” LE did not feel that was a valid or sufficient consent, so got his K9 out and K9 sniffed the car. K9 alerted to the car. Using a scope camera, LE found a secret compartment under the dash which contained case and contraband. His GPS did not show him going to any hospital in New York. A full search of the vehicle revealed loaded firearms as well.

The appellate court first held that a Terry stop is valid; that is, one that is supported by reasonable suspicion. The government argued there were two bases for a reasonable suspicion stop; 1) the traffic violations and 2) the investigation which identified the Equinox as suspicious during a broader drug trafficking investigation. The court held that there was a sufficient challenge to the stop for the traffic violations (Zayas filed a declaration that denied all the traffic violations).

The court then addressed whether the stop was valid as part of the trafficking investigation. The court held that the facts as presented were a close call and also called for a hearing on this as well.

The court then moved on to whether there was a prolonged detention. The court found that LE did extend the stop by (i) asking questions unrelated to the traffic violation—including what life was like for Zayas in Massachusetts, and about the taxes in Massachusetts—in order to give another officer time to walk around and look inside Zayas’ vehicle; (ii) by telling Zayas “as long as your license is valid, I’m not going to give you a ticket, I think that’s reasonable” but then directing Zayas to continue waiting outside his car with another officer for nearly seven minutes; (iii) by returning to Zayas after those seven minutes to ask Zayas whether he carried any contraband in the vehicle; (iv) by asking if he could search Zayas’ car “bumper to bumper including everything inside of it; and (v) by having the car sniffed from the outside by the K-9. Clearly, LE sought to address not only the traffic violation, but also possible narcotics trafficking. Therefore, the question was then whether LE had reasonable suspicion of trafficking to warrant the delays. The court held that reasonable suspicion was found based on the combination of the facts developed before the stop and Zayas’ extreme nervousness (he provided noticeable delays in responding to some questions, was licking his lips frequently appearing to developing cottonmouth, provided vague answers, was consistently looking away not making eye contact with me while speaking with me, displayed nervous laughter, had a volume change when speaking about illegal items, and had visible shaking in his legs.)

Finally, Zayas challenged the reliability foundation of the K9. The government had provided valid certification for the K9 team. However, Zayas wanted additional records and a hearing so he could challenge the reliability of the K9. The court held that Zayas was entitled to discovery of the K9’s training, field performance and instances of false positives. Once that discovery is accomplished, Zayas can ask for a hearing on this issue.

Note: This is a different process than I am used to. Usually, the trial court holds the hearings, makes a determination and then rules, which is then appealed. Here, this hearing is prior to the evidentiary hearing to determine if one is even needed. The appellate court granted the motions for hearing.

State v. Teague (North Carolina 2022) 2022-NCCOA-600
Package Sniff; Privacy Interest in Package in Commerce; Alert as Probable Cause; Odor of Marijuana as Probable Cause

A package was intercepted at a FedEx facility because it had several indicators of containing illegal narcotics. The package was placed among 4 or 5 other similar parcels. A K9 hit on the package with the indicators. A search warrant was obtained to open the package and it contained 15 pounds of marijuana. There was also a GPS tracking device inside.

LE drove to the address on the package and saw several people, including Teague. LE also noted that there was a self-storage facility close by. LE knew that traffickers use these units to store illegal substances so as to distance themselves from the product. LE was then informed that “Marcus” called and inquired about the package. LE called Marcus and he confirmed all the information about the package including the tracking number. LE ID’d themselves; Marcus cursed and hung up.

The next day, K9 hit on a storage unit in the nearby facility. LE was waiting for a search warrant to be signed when Teague showed up at the facility and was headed to the unit the K9 hit on with a bag in his hand. Teague was intercepted and detained. When Teague put the bag down on the patrol car, LE could see that it contained marijuana “wax”. Teague provided a key for the unit after the search warrant arrived and it was read to him. More marijuana and wax (and shatter) was found. A search warrant at Teague’s residence revealed more contraband.

Defendant filed a motion to suppress, claiming LE lacked either probable cause or reasonable suspicion to support (1) the initial removal of the target package from the conveyor belt at the FedEx facility and (2) the temporary retention of the target package to effectuate a K9 sniff.

The appellate court addressed the issue of taking the package out of commerce for inspection. Well-settled law allows postal workers or other commerce employees to handle the package and inspect its exterior. That is what happened here and the package had indicators of trafficking and therefore the retention of the package for purposes of a K9 sniff was valid. In addition, the recipient of a mailed item has a reasonable expectation that the mail will not be detained by postal employees beyond the normal delivery date and time. In other words, an addressee’s possessory interest is in the timely delivery of a package, not in having his package routed on a particular conveyor belt, sorted in a particular area, or stored in any particular sorting bin for a particular amount of time.

The court then held that the K9’s drug sniff was not a “search” implicating Teague’s Fourth Amendment rights. The alert combined with the other indicators provided probable cause to seek a search warrant for the package.

Accordingly, the appellate court held, the warrantless K9 sniff of the target package, still in the mail stream and in the custody of a third party on the grounds of a facility in which Teague had no possessory interest, and which the trial court found only “took about five to ten minutes[,]” did not in and of itself implicate the Fourth Amendment. Therefore, Teague’s renewed objection at trial to the introduction of evidence concerning the K9 sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.

The court then addressed the secondary issue Teague raised, which was based on the new law that possession of industrial hemp was legal and that said hemp and marijuana smelled the same. The court made short work of that argument. Even assuming, arguendo, hemp and marijuana smell “identical,” then the presence of hemp does not make all police probable cause searches based on the odor unreasonable. The law, and the legal landscape on marijuana as a whole, is ever changing but one thing is still true (in this state): marijuana is illegal. To date, even with the social acceptance of marijuana seeming to grow daily, precedent on the plain odor of marijuana giving law enforcement probable cause to search has not been overturned. Therefore, if hemp does have a nearly identical smell to marijuana — and hemp was present — it would suggest to this court that the law enforcement officer was even more reasonable to believe evidence of marijuana was present.

Note: While a prolonged detention of a motorist can happen while waiting for a K9 team to arrive, here Teague had a lesser expectation of privacy in his package that was placed into commerce, knowing people would be handling the package. Therefore, the short time period between seizing the package and setting it up to be sniffed did not implicate the 4th Amendment.

As for the hemp v. marijuana argument, this court made a very common sense decision; if hemp and marijuana smell the same and hemp is present, LE has a right to further inspect to see if the object is actually hemp. North Carolina has not legalized marijuana for recreational use.

State v. Guzman (Nebraska 2022) 2022 Neb. App. LEXIS 233 (Unpub.)
Traffic Stop; Prolonged Detention; Alert as Probable Cause

Guzman was a passenger in a car stopped by handler for no headlight or license plates. Guzman lied about her identity, but retrieved a document regarding the vehicle from the glove box. When opened, handler, based on his training and experience, noticed an odor he associated with perfume to conceal the odor of controlled substances and alcohol. Handler also suspected her to be under the influence.

LE was able to finally confirm identities (including the fact that Guzman had prior narcotic offenses) and ownership of the car. He started writing a warning citation. A back up LE arrived and handler passed the warning citation off to him while he checked Guzman more thoroughly for intoxication. He believe she was under the influence of a stimulant. She gave a different reason for traveling than the driver. Driver, having been given the warning citation, asked if he was free to go. At that point, handler believed he had additional reasonable suspicion to detain them and perform a free air sniff with his K9. He did so and the K9 alerted to the vehicle. A search of the vehicle revealed methamphetamine and paraphernalia in a box.

Guzman complained that there was no reasonable suspicion to detain her after the traffic stop ended and therefore the alert and the evidence in the car should have been suppressed. She did not contest the actual traffic stop.

Handler noted multiple factors which added up to reasonable suspicion of drug offenses. After being stopped, neither driver nor Guzman had identification on them. Handler observed a strong odor of a sweet fragrance coming from Guzman’s vehicle, which are commonly used to mask the odor of controlled substances and alcohol. Also, driver was very nervous and avoided eye contact. Driver and Guzman had dramatically different stories about the reason for their travels. The place driver said they had driven to was a drug distribution hub for the state. In addition, Guzman was under the influence of a controlled substance. When asked about the presence of drugs inside the vehicle, Guzman became defensive. Handler had also discovered Guzman had prior drug-related convictions.

Given the totality of the circumstances, handler had a reasonable suspicion to expand the scope of the traffic stop and continue to detain Guzman in order to perform a K9 sniff of the vehicle.

Note: Pretty straightforward case. Since the sniff occurred after the citation was completed and served, the court had to find additional reasonable suspicion to eliminate the argument of prolonged detention. Handler could have avoided that had he immediately run the K9 around the car after handing off the citation, but he was not wrong in his decisions. The investigation proceeded based on how the information was gathered and that there was sufficient reasonable suspicion to allow for a sniff.

United States v. Smith (Louisiana 2022) 2022 U.S. Dist. LEXIS 199945
Traffic Stop; Prolonged Detention; Reliability Foundation; Alert as Probable Cause

Traffic stop for lane violation. LE believed that driver could be under the influence. The vehicle was a rental which the driver (Smith) said he obtained two weeks prior, but the paperwork said he rented it the same day as the stop. He claimed to be coming from Louisiana, but the license plate reader said he was coming from Texas. Smith clammed up at that point. Smith was nervous, avoiding eye contact and holding his hands behind him.

LE believed that Smith was a driver in a drug trafficking operation and he was either carrying controlled substances or money, both of which would be contraband. LE went to confirm Smith’s driver’s license and radio’d for a K9 team. LE then discovered that Smith had several prior narcotics convictions and that he was on probation (apparently, he had not entered a 4th amendment waiver as a condition of that probation).

The call to the K9 team came 6 minutes after the initial stop and the K9 arrived in 2 more minutes. At that point, and after speaking with LE, handler ran his K9 around the car and the K9 alerted. However, during the sniff, K9 “keyed up” on Smith, lunging at him, because K9, who is both a drug dog and an apprehension dog, considered Smith a threat. Therefore, handler asked LE to move Smith back. He re-set K9 and gave the command to recommence sniffing. During the recommenced sniffing, K9 kept looking at Smith, so handler again asked Smith to move back and again re-set K9 to begin another sniff. At this point, K9 was more focused and subsequently alerted. There was cocaine in the trunk, marijuana in the center console and three cell phones.

Smith complained that the traffic stop was unduly prolonged for the K9 sniff and that the K9 was unreliable.

The appellate court found first that the initial traffic stop was valid (lane violation). The defense attacked LE’s record, but found that LE was never disciplined for dishonesty and found him a credible witness.

The appellate court moved on to the issue of whether there was reasonable suspicion for the prolonged detention. The court found that the K9 team arrived almost contemporaneously with LE’s computer checks, which revealed Smith’s criminal history and probation status. The stop was only 10 minutes when K9 alerted. In addition, up to that point, LE was not only dealing with traffic violations, but possibility of an intoxicated driver. Also, there were other indicators about additional criminal offenses; nervousness, lack of eye contact, lying about the rental car and direction of travel, etc. Once the K9 alerted, then there was probable cause to search the vehicle.

The court then addressed if the K9 had the requisite training and experience to give a reliable alert. Here, handler had been a certified canine handler for over five and one-half years. K9 was a patrol and apprehension dog, or “bite dog.” They had been working together since 2018. They are required to be certified annually, and they train weekly together. They are certified through the National Police Canine Association (NPCA) and U.S. K9. K9 has never failed and had never given a false indication while working with handler. K9 may alert where no drugs are found; however, handler testified that such instances are due to the odor of drugs remaining, though the drugs may have been removed, such as if an individual smoked marijuana before riding in a car.

There were also expert witnesses in this case regarding the reliability foundation of the K9. The defense expert, Heyden, was a consultant on issues regarding dogs, training, and law enforcement since 2004. His expert report in this case indicates that he is a certified law enforcement officer with specialized training, as well as a service dog handler (drug/patrol), an instructor in all areas of K9 law enforcement training, and he was the first law enforcement officer trained and certified to the standards of the German Police in the United States as a judge in all aspects of law enforcement canines (patrol, tracking, drug/explosive detection, agility, obedience). In support of his qualifications, he testified that he trained dogs from 1987 through 2002 or 2004. He was trained as a handler in the 1980s by the Government’s expert, Sgt. Nope, went on to train approximately 500 dog and handler teams, and was a judge for law enforcement dogs. Nevertheless, he had not been a member of any police dog organization in the prior 25 to 30 years, because he did not agree with the certification and training methodologies of those organizations. He had not attended any training in his field since 1990 and had not trained any dogs for around twenty years. Heyen rebuked NPCA’s standards for certification in his report and opined that the German Police Drug Dog Certification standards are more appropriate. The court accepted Heyden as an expert in the fields of drug dog handling and training but declined to accept Heyen as an expert in the field of drug dog certification and administration (to the extent administration concerns certification). Mr. Heyen did not provide sufficient information supporting his qualifications to testify regarding acceptable standards for certification organizations. He had not been a member of any bona fide organization or attended any pertinent training for twenty-five to thirty years. He had not published any scholarly articles on the certification standards he believes are more appropriate.

The Government tendered Sgt. Wendell Nope as an expert in the fields of canine and police dog handling, training, certification, deployment, and auditing. Sgt. Nope is a retired sergeant and K9 training supervisor for the Utah Peace Officer Standards and Training Division of the Utah Department of Public Safety. His eighteen-page curriculum vitae references numerous awards and certificates over many years as police dog instructor, supervisor, and judge. He was the editor of a national police dog professional journal and authored numerous articles, books, and manuals in his field. In addition, he maintains relationships with the National Police Canine Association (NPCA) and other such organizations, as well as with government agencies in order to stay aware of new technology and practices in the industry. The Court accepted Sgt. Nope as an expert in all aspects.

Smith’s expert said that K9 was not certified by a bona fide organization and K9 was not certified to detect certain drugs at certain times. The government’s evidence showed that K9 was certified by NPCA to locate cocaine, marijuana, methamphetamine, and heroin and certified the following year to locate cocaine, marijuana, methamphetamine, heroin, and MDMA. Nope said that NPCA is a bona fide organization and certification by them has been accepted in other jurisdictions. The appellate court therefore found that the NPCA is a bona fide organization and that K9 team were properly certified at the time of the search to locate the drugs discovered in this case, cocaine and marijuana.

Smith then claimed that K9 was aggressive and distracted so his alert is not reliable. Handler explained that K9 is a dual-purpose dog, trained to both detect drugs and apprehend. K9 “keyed up on” or lunged at Smith during the search, because, as handler testified, K9 considered Smith to be a threat. Once Smith was moved further away, K9 was refocused on the search and did his job.

Sgt. Nope testified that, although K9’s aggressive behavior toward Smith was not typical of a K9 sniff, once handler re-set K9, he sniffed the vehicle normally. K9 then alerted to an odor at the driver’s door before coming to a sit, thereby indicating he had sniffed a drug odor, at the passenger’s door and again at the driver’s door where he had earlier alerted. Sgt. Nope explained that an alert is a dog’s natural reaction to a known odor; whereas, an indication is a dog’s trained response to a detected odor, in this case a sit. Sgt. Nope concluded that K9 performed a reliable sniff and that he performed according to his training and consistent with his prior performances. He had no doubts that K9’s sniff was valid.

Unsurprisingly, the defense expert disagreed. He claimed K9’s alert was unreliable because he was distracted by Smith and, once he was sniffing, “he just came, put his head up and he sat and had no increased intensity or focus,” or other outward signs. However, Sgt. Nope testified that many dogs are trained to indicate with a sit and stare towards the handler. Handler testified that K9, who he had worked with successfully since 2018, indicated to the presence of drugs by sitting. Accordingly, the Court found that K9’s conduct in this case, though initially atypical, did not render his sniff and indication for the presence of drugs unreliable.

Finally, Smith challenged K9’s reliability based on insufficient training. The testimony and training records showed that handler and K9 trained weekly. Although they occasionally missed a session and only a portion of the training concerned narcotics specifically, the evidence shows that the K9 team completed routine training, had completed all weekly trainings in the month of October 2020, and that K9 successfully located narcotics in each session.

Heyen opined that K9’s training records were incomplete and that he had insufficient training, because training records show that he was only sniffing during each training session for mere minutes. Based on Heyen’s calculation, K9 had only trained for two hours and thirty-four minutes throughout the entire year of 2020. In support of his conclusion, Mr. Heyen relied on standards promulgated by the Scientific Working Group on Dog and Orthogonal Detector Guidelines, or “SWGDOG,”5 which recommends four hours of training per week.

Sgt. Nope discredited Heyen’s calculation of K9’s training as based on “nose time,” or the length of time the dog is actually sniffing. Sgt. Nope stated that such a calculation is a skewed statistic in law enforcement dog training practices, because it does not consider setup, preparation, takedown, research, interview, and other time periods associated with deployment of a dog. Further, although SWGDOG recommendations state that a canine team shall complete a minimum of sixteen hours of training per month, the guidelines do not define training as a value of nose time or limit the training requirement by type (i.e. narcotics, apprehension, etc.) as Heyen suggested. Moreover, the SWGDOG recommendations provide that training conducted solely by the handler is acceptable, provided it is periodically combined with supervised training. Handler testified that he and K9 do five-hour trainings weekly, which includes various types of training, such as apprehension, tracking, building, and area search.

After analyzing K9’s training records, Sgt. Nope concluded that K9 had a 99% accuracy rate during training and 84% accuracy rate during deployment (i.e. non-training situations in which he was deployed), both of which were well within the acceptable professional standard of reliability and credibility. The Court disagrees with Heyen’s assessment of K9’s training and finds that Sgt. Nope’s opinion substantially outweighs Heyen’s opinion. K9 was not unreliable due to training. Therefore, K9’s alert provided probable cause for the search of the vehicle.

Note: Remember you do not have to quantify field results because there are variables you cannot control in those situations. The court also noted that other courts had found Nope more credible than Heyden. This is a good case to read so that you understand the depth to which the defense will go on your record as an officer and you as a team with your K9. You need to be prepared for that each time you are subpoenaed. Bring all records with you so that you can refer to them to refresh your recollection.

Cook v. City of Albuquerque (New Mexico 2022) 2022 U.S. Dist. LEXIS 200387
Excessive Force; Invasion of Privacy; Unconstitutional Seizure; Bite of Civilian

LE was in pursuit of an armed robbery suspect. There was an additional report that he left his vehicle and was entered a junkyard and was hiding under a car. LE set up a perimeter and then dispatched K9 teams to the area. Other responding officers told neighborhood residents to park outside of the perimeter. When the K9 teams arrived, the perimeter was adjusted and McPeek (one of the handlers) drove around the perimeter directing members of the public to stay inside, keep windows and doors locked and to contact 911 for an emergency. He also directed announcements at the suspect to make himself known or a K9 would be deployed to find and bite him.

Additional information came in that “friendlies” may be assisting the suspect. Also, the suspect’s ID was distributed along with a picture of him. The K9 teams searched inside the perimeter but they were unable to locate the suspect. The perimeter was broken down and LE left the scene. Cook, the plaintiff in this case, believed since LE left the area, it was safe to retrieve his vehicle.

Meanwhile, LE got additional information that suspect was at a nearby location, so the perimeter was re-estabished and K9 teams were deployed again 20 minutes after the perimeter was broken down. A homeowner told LE that suspect was hiding under his shed and had offered him money to drive him out of there. The homeowner declined and watched him run away. LE gave chase on foot, but lost him.

About 20 minutes later, another perimeter was established and McPeek gave another set of announcements which told civilians to stay in their houses, but it was unclear if there were any additional K9 warnings at this time. Plaintiff did not hear any warnings at this time.

McPeek and his K9 as well as another K9 team were deployed into the area inside the perimeter. The other team saw a male and chased after him, but were not successful. McPeek was told there was movement (LE for the most part believed it was a cat), but McPeek believed it was also the location where the suspect was last seen (this is unclear from the record). McPeek was authorized to deploy his K9. At this point, the last K9 announcement was 30 minutes prior. McPeek knew that civilians were in the area and could be outside their homes. McPeek also knew that K9 would bite anyone he found that moved. Nonetheless, McPeek deployed K9 off lead without giving any announcement. As Cook was locking the gate to his house, K9 found him and bit him. McPeek heard someone screaming and assumed K9 had located the suspect. As LE approached, they yelled to Cook to show his hands and get down on the ground. Cook was holding K9 by the collar. He told LE he lived there. McPeek approached to get the K9 and told Cook to let go of its collar. Cook did so and K9 bit him again. Both bites resulted in severe injuries. McPeek was ordered to detain Cook and get Cook medical assistance.

LE patted Cook down before taking him to the medical vehicle. At the rescue vehicle, LE urged Cook to allow examination and treatment. Cook initially refused because he was concerned about his own dog and whether his house was secured. Cook was not allowed to mitigate those concerns before LE ushered him off the scene. At no time before his removal did Cook give officers permission to enter his home.

After LE removed Cook from the scene, McPeek returned to Cook’s residence with three other officers. Upon arrival, officers saw that Cook’s home had two doors: a primary wood door and a screen door. Although the wood door was open, the screen door was shut. Officers found Cook’s cell phone, which had fallen on the ground outside of his residence. McPeek picked up the phone, opened Cook’s screen security door, and tossed the phone inside. McPeek then closed both doors and left the home.

McPeek and other officers continued to search for the suspect to no avail. On multiple occasions throughout their search, they entered Cook’s home. During one entry, officers congregated in Cook’s living room and watched footage from Cook’s personal surveillance cameras.

Cook’s family arrived to secure his house. They were detained by LE before they were allowed to enter. They found several officers in the home. Cook’s partner picked up the dog and locked the house. She then traveled to the hospital to pick up Cook. However, Cook was taken to a room from the hallway in the hospital and questioned about the bites. This delayed girlfriend from seeing Cook and getting him home.

Cook alleged that McPeek violated his Fourth Amendment rights by: (1) unreasonably deploying a


9 off-lead, without warning, into a residential neighborhood; (2) unreasonably ordering Cook at gunpoint to release the K9’s collar without first recalling the K9, thereby prompting a second attack; and (3) entering Cook’s home multiple times without permission or a warrant. McPeek asserted a defense of qualified immunity on each claim. This Court addresses each claim and corresponding defense in turn.

The appellate court addressed the first bite. If a K9 is improperly deployed, that constitutes excessive force. Because a seizure occurred the moment the K9 bit Cook, the question becomes whether McPeek reasonably deployed that K9. Cook argues that it was unreasonable for McPeek to release a K9 off-lead without warning in a residential neighborhood, where officers knew bystanders may be in the area, despite not facing an immediate threat or danger. The Court agreed. The court employed an analysis under Graham v. Connor and found that the facts in this case did show an unreasonable deployment which then resulted in excessive force. The court pointed out that although LE was after a violent criminal, the deployment was in a residential area at a movement that was possibly a cat and off lead. This meant the K9 was out of sight of the handler when he bit Cook. Finally, there was nothing preventing another announcement that a K9 was going to be deployed and to remain behind closed doors. The court found there was ample time to make that announcement and there was no threat to LE that would have made such an announcement a risk to LE. Therefore, the court found that there was a triable issue of fact on this issue of a warning.

The court moved on to whether McPeek was on notice that deployment of K9 in this situation was unreasonable. Cook argued that it is clearly established that an officer who faces no immediate threat cannot deploy a PSD off-lead without warning.

The court found that releasing a K9 off-lead into a residential neighborhood, without warning, is a clearly established constitutional violation if no imminent threat exists. In evaluating the totality of the circumstances, the Court found a fact question exists as to whether there was an imminent threat, and whether the warnings provided was sufficient. This Court did not grant McPeek summary judgment on Cook’s excessive force claim for deployment without warning.

The appellate court then moved on to the second bite. At that time, Cook had a defensive hold on the K9 which was preventing another bite. When Cook complied with McPeek’s command to release the dog, he was bit again on his other thigh. Throughout this interaction multiple officers had their guns pointed at Cook despite Cook appearing unarmed and nonthreatening. However, it was not until officers had approached and gained physical control of K9 that a command was given to release. The bites from K9 left deep wounds and lacerations in both of Cook’s thighs. At no point did Cook attempt to flee or pose any threat to the officers. He also yelled out, “I live here, I live here,” immediately notifying officers that he was a homeowner, and not the suspect.

Under the totality of the circumstances this Court found it was unreasonable use of force to allow a second bite once officers already had guns pointed at Cook and Cook was complying with officers’ instructions. This is a clearly established boundary; a use of force against a non-suspect civilian who poses no threat is a clearly established unreasonable, and therefore unconstitutional, use of force.

Finally, the court of appeal addressed the multiple entries into Cook’s home. No evidence in the record suggested that Cook gave officers voluntary consent to enter or search his home. Lapel camera footage shows that Cook repeatedly asked officers if he could lock up his own house and secure his own dog before going to the hospital. He also offered to go with officers to do the same. Officers declined his request. Without any clearly contradictory evidence to refute the lapel footage or Cook’s statement, the only evidence before the Court supports a finding that Cook did not consent. McPeek’s entry and search was without warrant, consent, or exigent circumstances justifying hot pursuit, community caretaking, or a protective sweep. Thus, McPeek was not entitled to qualified immunity and summary judgment was denied on this issue.

The court then turned to the state claims of false imprisonment and arrest. The court held that Cook was seized the moment that K9 bit his leg. At that time, neither McPeek, or any other officer had any reason to believe Cook had committed or was committing any offense. In fact, officers were not even aware of his presence when K9 was deployed. LE argue that they had “an objectively reasonable good faith belief based upon the totality of the circumstances. . . to seize Cook.,” claiming that they are entitled to a judgment as a matter of law against Cook’s false arrest and false imprisonment claims. The appellate court disagreed. Cook complied with the officers’ directions and did not match the suspect’s description. At that time, neither McPeek, nor any other officer had reason to believe Cook had committed or was committing any offense. In fact, officers radioed in that they had a homeowner in custody who “did not appear to be the suspect.” LE are not entitled to judgment as a matter of law on this issue. The court held that the state battery claim would proceed as well.

Note: Announcements are important, especially if you deploy where civilians are likely to be. Make sure you can prove you made the appropriate announcements by making sure your body cam is on and having additional police verify that they heard the announcements from where they were deployed (preferably on the other side of the civilian area). In addition, the second bite was probably avoidable since McPeek could have ordered K9 to release and return to him since other officers were present and had Cook at gunpoint. And finally, the issue of unpermitted entry into the house was just incredible. One wonders where the supervisors were and what they were told about entering a civilian’s home and helping themselves to his security system. This could have been handled much better from the start but bad decisions happened at every stage. Expect a big settlement with this case or an even bigger jury award.

Klaver v. Hamilton Cnty. (Tennessee 2022) 2022 U.S. App. LEXIS 30642 (Unpub.)
Traffic Stop; Prolonged Detention; Qualified Immunity

Traffic stop for excessive tint. Klaver did not answer questions, but asked if he was being detained. He was told yes, for the window tint, and he handed over his license. The two officers discussed Klaver, saying they believed he was a sovereign citizen and that he was shaking like a leaf. They decided they should call a K9 team in because they believed he had controlled substances. LE also noticed that Klaver had a Marine Corps sticker on his license plate which partially obscured the plate. About 5 minutes into the stop, LE returned to Klaver and asked for registration and insurance. LE told him the sticker was an obstruction which was not allowed and then asked if he had ever been arrested (there was a harassing calls entry on his rap sheet). Klaver said no. LE asked if he was on medication and if he had a medical condition because he was shaking. Klaver wondered if they could ask those questions of him. LE told him that he interpreted the shaking as Klaver hiding something like controlled substances or weapons. Klaver denied having any of those in his possession. Consent was refused. At this point, the K9 team was requested.

One officer started the citation process and the other approached Klaver again. Now Klaver was recording and it showed that he was removing the film from the driver’s window. Klaver wanted to be on his way and was told a citation was in process. The K9 team arrived before the citation was finished. LE told the handler that they should wait until he finished the citation to run the K9 in case Klaver does something “stupid.” LE then returned to Klaver and had him get out. At this point, Klaver gets out, is patted down and LE discussed the citation with Klaver. A few minutes later, the K9 alerted to the vehicle. LE found no contraband in the vehicle, and Klaver finally told LE that he had muscular dystrophy as he was signing the citation.

Klaver sued for 4th Amendment violations. LE asserted qualified immunity. Klaver (as the Plaintiff) must show both that LE violated the Fourth Amendment and that the existing case law clearly established this violation. The appellate court defined the issues in the case: Did LE prolong the stop beyond the time necessary to resolve the window-tint violation? If so, did they have reasonable suspicion to believe that Klaver was engaging in other crimes?

The first question was answered in the affirmative, at least to the extent that there were factual disputes that a jury would have to decide. Even though the citation was “in process” while the K9 sniff was occurring, a jury could decide that LE was “slow walking” the citation so that the K9 team could arrive and sniff the car. Since this is factual dispute, the doctrine of qualified immunity did not apply here.

Was there additional reasonable suspicion that would allow for the prolongation of the traffic stop? The court said there was a factual dispute here as well. LE’s briefs identify four pieces of evidence as their grounds for reasonable suspicion to believe that Klaver possessed drugs: (1) the deputies suspected that Klaver might be a sovereign citizen; (2) Klaver removed the tint from his window during the stop and then lied about doing so during the stop; (3) Klaver was shaking; and (4) he was generally uncooperative and did not respond to the officers’ questions about the shaking. The court held the first two factors were not relevant to the question of additional reasonable suspicion. The second two only highlighted a difference in opinion and therefore, this issue must go to a jury as well. In addition, then, qualified immunity is not available here either.

Note: This demonstrates that LE did not really understand their duty under the 4th Amendment to not prolong a traffic stop for a K9 sniff. Therefore, their rather reckless treatment was exposed for what it was; conclusions based on conjecture. The plaintiff’s attorney will have a field day with this. In addition, I am sure the plaintiff’s attorney will be asking for personnel records from the agency on these officers and if there is anything there, that will be exploited as well. This case serves as a reminder that actual facts should drive the decision making, not allowing conjecture to be the basis to collect facts that favor your position.

Ramsey v. Bossier City (Louisiana 2022) 2022 U.S. Dist. LEXIS 200982
Excessive Force; Qualified Immunity

LE responded to a call concerning an audible alarm at a store. Handler used a K9 to assist in the search of the store’s property and surrounding areas upon arrival. During the search, handler observed a suspect, who he later identified as Ramsey, inside a gated area. After warning Ramsey that handler would deploy K9, Ramsey fled rather than stopping and complying. Handler deployed K9, and K9 eventually apprehended Ramsey behind a nearby business. When handler caught up with K9 and Ramsey, handler observed Ramsey apparently attempting to fight off K9. Ramsey alleges that he verbally and physically surrendered at this point, as K9 continued the bite-and-hold technique. K9 released Ramsey when handler gave the verbal command, and another officer handcuffed Ramsey. Handler estimates that K9 held Ramsey for a total of approximately thirty seconds before handler called K9 off. Ramsey pled guilty to simple burglary (apparently wasn’t charged with resisting or fleeing).

Ramsey then sued for civil rights violations and after several motions to dismiss were filed and considered, the only remaining claim (that is relevant to our purposes is against handler, in his individual capacity, for the use of excessive force during the apprehension and arrest of Ramsey. Handler responds that he is entitled to qualified immunity on the federal claims and that he is not subject to the state claims. Specifically, handler argues that there was no actual constitutional right violation because handler’s actions were objectively reasonable under the circumstances, Ramsey cannot prove a discrete injury from the alleged violation, and no right was “clearly established” at the time of the alleged violation. In response, Ramsey argues that there is a genuine issue of material fact concerning “whether handler applied pressure to his dog’s jaws to increase the amount of force of the dog’s bite when the dog was biting Ramsey’s leg and whether he allowed or encouraged his dog to continue to bite Ramsey after Ramsey had surrendered and been subdued.” In his reply, handler argues that the evidence used by Ramsey in the opposition—a “Declaration” and several photographs—are inadmissible and cannot be used to create a genuine issue of material fact.

The court dealt with the last issue first, agreeing with handler that the evidence is not admissible at this summary judgement hearing.

The court then addressed whether there was a constitutional violation. The court applied the Graham factors and found they weighed in handler’s favor. First, burglary, the crime being investigated at the time of Ramsey’s apprehension, “is a serious crime.” Thus, the first factor favors handler. Second, it was reasonable for handler to believe that Ramsey posed a threat to himself and other officers. Ramsey fled from the police, and the chase occurred at nighttime, where handler needed a flashlight to see. Additionally, handler believed that Ramsey might be armed, because the store that was the subject of the burglary sold firearms. Even further, handler estimates that, from the time he reached K9 and Ramsey, K9 continued the bite for only twenty seconds while handler secured the area. Thus, the second factor also favors handler. Finally, the third factor favors handler because Ramsey had already attempted to flee from police, and it was reasonable for handler to believe Ramsey may have attempted to flee again once released from K9’s hold. Thus, upon balance, the totality of the circumstances demonstrate that handler’s actions were not objectively unreasonable. Thus, there was no constitutional right violation that can support liability under Section 1983, and handler is entitled to summary judgment as a matter of law.

Ramsey appears to argue that the exacerbation of the K9 apprehension by handler, rather than the initial deployment of K9, constituted use of excessive force (a theory Ramsey attempted to advance with the inadmissible evidence). However, as handler points out, Ramsey cannot show any injury that resulted directly from clearly excessive force, if such excessive force even existed. While Ramsey can show that he sustained bite wounds from K9, Ramsey has not shown how the alleged worsening of the bite by handler led to any additional or distinguishable injury. This Court agreed with handler that Ramsey has failed to produce evidence of the discrete injury complained of, and thus summary judgment wad proper.

As demonstrated above, Ramsey cannot show a constitutional right violation, and thus, the qualified immunity analysis may end there. Out of an abundance of caution, however, this Court  analyzed the second prong of the qualified immunity defense below; that the facts do not show a clearly established right to be free of the alleged violation.

The court held that handler did not violate a clearly established right by allowing K9 to remain engaged with Ramsey for thirty seconds while handler secured the area. Handler was allowed a reasonable time to assess the situation before commanding K9 to release Ramsey, and Ramsey can produce no competent summary judgment evidence to establish that he had been completely subdued before the handcuffs were placed on him. Accordingly, Ramsey has failed to show a clearly established law that handler violated in allowing thirty seconds to pass while he assessed the situation, and thus, Ramsey has failed to overcome the defense of qualified immunity. Thus, handler is entitled to summary judgment as a matter of law.

Note: Don’t rely on the blanket statement by the court that burglary is a serious crime. In California, commercial burglary is not a serious crime and is not treated as such. The fact that the store sold firearms would make it more serious, but probably not as serious as armed robbery, for example. Otherwise, this case is a good one for LE because handler did a good job.

The Heck doctrine could have applied if Ramsey had been charged with obstruction and he pled to that offense as well. Instead, the prosecutor’s office only charged the original offense. They may have had their reasons for doing so, but  a plea to obstruction even if the sentences are run concurrent, can prevent this type of lawsuit after the fact.