February 2021 UPDATE FOR MEYER’S K9 LAW (Volume 2, No. 2)
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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from January 2021. (A caution here: some cases are unpublished (Unpub.) 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. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)
If you are new to the website, thank you for becoming a member! Please feel free to browse through the previous updates. Each update has not only a review of the PSD relevant cases for the month, but often has an article that explores a specific issue in more depth. If you would like me to address a particular issue, please feel free to email, text or call me.
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. I do not represent any individual or agency. 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.)
ARTICLE – Can a Passenger be Searched When There is Probable Cause to Search a Vehicle and No Contraband is Found In the Vehicle?
It depends on the jurisdiction. In Maryland, for example, State v. Wallace (2002) 372 Md. 137 states that even though there was an alert by a PSD, and therefore probable cause to search the vehicle, the search of the passenger was not valid as there was no additional probable cause to search the passenger. The Court opined that the handler should have had the PSD sniff the passenger first; then, if the PSD alerted, LE could search the passenger. However, there was no evidence introduced that the car had been searched prior to searching the passenger. This then leaves that jurisdiction in a bit of a muddle of how to proceed; sniffing people is not recommended by Meyer’s K9 Law because most PSDs are dual purpose and having a dual purpose PSD sniff a person can be dangerous. So, in terms of how to proceed in a situation with a passenger, it appears the best approach in this jurisdiction is to find additional probable cause regarding the passenger (does he smell like weed? Is he legally under the influence under your state laws? Is there an open container in the vehicle within reach of the passenger? Does a Terry frisk (if appropriate) reveal any information that would give you probable cause? Is there information that would cause a reasonable officer to believe that the passenger and the driver are in cahoots in a criminal enterprise? Etc.) Once additional probable cause for the passenger is established, then a search of the passenger is appropriate.
Florida, Illinois, and Ohio seem to also require separate probable cause to search passengers, such as a free air sniff of the passenger’s person (again, however, this is not recommended as sniffing a person can be dangerous). In these jurisdictions, the same approach as suggested in the Maryland jurisdiction would be warranted.
On the other hand, the 10th Circuit, which includes Wyoming, Utah, Colorado, Kansas, New Mexico and Oklahoma, has ruled that an alert to a vehicle provides probable cause to perform warrantless searches of all occupants.
California has no case law directly on point, but as an alert from a properly trained PSD provides probable cause to search the vehicle. Therefore, that probable cause permits the arrest of the occupants, who can then be searched incident to arrest.
Two new cases came out in January that address this issue. They are N.J. v. Robinson (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 123 and State v. Conkey (Iowa 2021) 2021 Iowa App. LEXIS 43. In the New Jersey case, the subject was a passenger in a car pulled over for having heavily tinted windows. A strong odor of marijuana was coming from inside the vehicle and subject was nervous and hinky. There was some marijuana paraphernalia in the vehicle. Subject was removed from the vehicle and vehicle searched but nothing was found. LE then searched subject’s person and asked if subject was armed. Subject answered affirmatively and simultaneously LE felt the butt of a handgun in subject’s waistband. Subject was immediately handcuffed and the gun retrieved. No marijuana was ever found.
The main issue appellate issue here was whether the smell of marijuana provided probable cause to search subject (a passenger). The court considered the totality of the circumstances and stated that the odor detected by human LE and the paraphernalia was enough probable cause to search the vehicle and the driver. When those were unfruitful, it was logical to search the driver. However, this appellate court just based that conclusion on common sense and did not cite any legal authority. But this case does exist and it will be interesting to see if future cases follow it.
The other case was out of Iowa. Conkey was a passenger in a car stopped for a traffic violation. LE noted symptoms of nervousness and being under the influence. A PSD team was called in. The handler noted the same indicators and a free air sniff of the vehicle resulted in an alert. In addition, Conkey was found in possession of a knife during a Terry frisk (which was not challenged). The court stated that based on the human observations, it was reasonable to believe that Conkey was under the influence and possessed drugs. The alert was added to that reasoning, and the court held that it was reasonable for LE to believe that Conkey was in possession of drugs and therefore probable cause existed to search Conkey.
These two new cases really have not changed the landscape; at least, not yet. So unless you are in a jurisdiction where there is a case that states a passenger may be searched after an alert when the vehicle and the driver are clean, the best practice would be to develop additional probable cause for the search of the passenger.
INDEX FOR REVIEWED CASES FROM JANUARY 2021
State v. Newman (Ohio 2021) 2021-Ohio-119 – Prolonged detention; Reliability Foundation
State v. Newman (Ohio 2021) 2021-Ohio-197 – Prolonged Detention
State v. Zuniga (Ohio 2021) 2021-Ohio-196 – Prolonged Detention; Reliability Foundation
U.S. v. Tillman (Tennessee 2021) 2021 U.S. Dist. LEXIS 15319 – Odor of Marijuana as Probable Cause
United States v. Murray (10th Cir. 2021) 2021 U.S. App. LEXIS 2237 – Odor of Marijuana as Probable Cause
Palmer v. Santa Maria Police Dept. (9th Cir. 2021) 2021 U.S. App. LEXIS 1976 – Excessive Force; Qualified Immunity
N.J. v. Robinson (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 123 – Odor of Marijuana as Probable Cause; Search of a Passenger
State v. Conkey (Iowa 2021) 2021 Iowa App. LEXIS 43 – Traffic Stop; Search of Passenger
Dunnaway v. Commonwealth (Kentucky 2021) 2021 Ky. Unpub. LEXIS 5 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Smith (Tennessee 2021) 2021 U.S. Dist. LEXIS 10409 – Traffic Stop; Odor of Marijuana as Probable Cause
Garcia v. Brown (South Carolina 2021) 2021 U.S. Dist. LEXIS 8400 – Odor of Marijuana as Probable Cause; Qualified Immunity
State v. Bowen (Oregon 2021) 2021 Ore. App. LEXIS 38 – Traffic Stop; Odor of Marijuana as Probable Cause
People v Blandford (New York 2021) 2021 N.Y. App. Div. LEXIS 85 – Traffic Stop; Prolonged Detention
United States v. Morris (West Virginia 2021) 2021 U.S. Dist. LEXIS 7548 – Traffic Stop; Consent; Prolonged Detention; Alert as Probable Cause
United States v. Goins (Ohio 2021) 2021 U.S. Dist. LEXIS 1118 – Reasonable Suspicion; Prolonged Detention
Commonwealth v. Thomas (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 133 – Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause
United States v. Wofford (New York 2021) 2021 U.S. Dist. LEXIS 5587 – Traffic Stop; Odor of Marijuana as Probable Cause; Reliability Foundation; Cueing
United States v. Sanders (New York 2021) 2021 U.S. Dist. LEXIS 4982 – Traffic Stop; Odor of Marijuana as Probable Cause
People v. Jesus R. (In re Jesus R.) (California 2021) 2021 Cal. App. Unpub. LEXIS 135 – Odor of Marijuana as Probable Cause/Reasonable Suspicion; Terry Frisk
Branch v. State (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 44 – Traffic Stop; Odor of Marijuana as Probable Cause
State v. Eady (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 25 – Sniff of Door Seam; Curtilage; Odor of Marijuana as Probable Cause
People v. Jones (New York 2021) 2021 N.Y. App. Div. LEXIS 95 – Odor of Marijuana as Probable Cause; Reliability Foundation
Moore v. Monaghan (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 849 – Odor of Marijuana as Probable Cause; Qualified Immunity
State v. T. T. (In re T. T.) (Oregon 2021) 2021 Ore. App. LEXIS 2 – Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause
Terry v. State (Georgia 2021) 2021 Ga. App. LEXIS 34 – Traffic Stop; Prolonged Detention
Sweiha v. County of Alameda (California 2021) 2021 U.S. Dist. LEXIS 16681 – Excessive Use of Force
Diallo v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 63 – Traffic Stop; Odor of Marijuana as Probable Cause; Search Incident to Arrest
REVIEWED CASES FROM JANUARY 2021
These first three cases (Newman (at 119), Newman (at 198) and Zuniga arise from the same facts, but address different issues. The facts are as follows: A vehicle was under investigation as one that was believed to be transporting drugs. LE was requested to conduct a traffic stop if independent probable cause could be developed. The vehicle was observed to be speeding and when a marked cruiser pulled up beside them, the occupants appeared to be rigid in their seats and talking to each other, but not making eye contact. LE stopped the vehicle for speeding. Newman was the driver and Zuniga was the front seat passenger. Newman’s brother, Tyler, was also a passenger. Newman was able to find her driver’s license after a frantic search of her purse, but only had invalid insurance information. She handed it to Zuniga and Zuniga handed it to LE with shaking hands. They both appeared very nervous. When LE asked if she had update information, she said she might have information on her phone and began to search her phone. Zuniga then asked if this LE officer had pulled him over before. LE responded affirmatively. LE asked driver to step out after all she was able to produce was an expired insurance card. LE refused to call the insurance company when requested and told Newman to keep looking in her emails. LE then asked where they were coming from. Her story did not make sense and was different than the one from Zuniga. Fourteen minutes or so into the stop and while Newman was still looking for her insurance information, LE ran PSD around vehicle in a free air sniff. There was evidence presented that the team was certified multiple times and that the team trained a minimum of 16 hours a month. During the free air sniff, PSD inhaled the exhaust fumes and lost focus on the vehicle. Handler opined that PSD’s capability to smell was at least temporarily comprised and it took two more tried to continue the free air sniff. On the third circuit, PSD alerted and on the fourth trip, PSD gave a final indication by trying to lie down under the vehicle. Based on this positive indication, LE searched the vehicle and found a toolbox with a false bottom in the bed of the vehicle. In that portion of the toolbox, cocaine was found.
The prosecution presented PSD’s training and certification through the handler’s testimony and also presented an expert, a sergeant with the agency, who opined that the team was effective and reliable and supported the handler’s opinion that the PSD was temporarily distracted from the exhaust fumes.
Andre Falco Jiminez also testified for the defense, claiming that although he had over 20 years of experience training PSDs, PSDs cannot find the source of narcotics. He has also written a book entitled, “Big Income Expertise How Even You Can Be an Expert on Anything and Profit From It.”
State v. Newman (Ohio 2021) 2021-Ohio-119
Prolonged detention; Reliability Foundation
The first issue raised was prolonged detention and the court found that LE did not unreasonably prolong the stop. There was testimony that LE was still in the process of conducting the traffic stop when LE walked his PSD around appellant’s vehicle. Newman was still in the process of looking for proof of insurance. Approximately thirteen minutes had passed between the stop and the PSD sniff and Newman was still attempting to locate current proof of insurance. As noted by the trial court, LE testified that he was going to give Newman a warning for her speeding as long as she was able to provide proof of insurance. Therefore, since the traffic stop was still proceeding at the time of the free air sniff, there was no prolongation of the stop.
The second issue was whether the PSD team was reliable. LE presented both testimony and documentary proof establishing that PSD was properly trained and certified as a narcotics-detection canine. The court held that this evidence was sufficient to establish the PSD’s reliability. In addition, extensive training and certification records for the PSD team were entered into evidence, totaling numerous pages of training records. The handler also testified in detail regarding the certification process and that the team was certified by the Ohio POST on the date in question. Moreover, the prosecution’s expert witness reviewed four or five months’ worth of PSD’s records in announcing that he was reliable. The court also concluded that the LE witnesses were more credible than Falco Jiminez and held that the PSD was sufficiently reliable.
Finally, Newman challenged the alert/final indication by the PSD. The court, relying on the testimony presented as well as the video of the stop found that PSD alerted on the vehicle as the video evidence supported the facts as testified to by LE rather than the theories advanced by Falco Jimenez.
Note: Not really anything new here, but interesting to note that Falco Jiminez is really starting to scrape the bottom of the barrel. If your case has Falco Jiminez for the defense, steer your prosecutor to this case, which will then lead to other cases. He has been discredited more than once.
State v. Newman (Ohio 2021) 2021-Ohio-197
This case concerns the back seat passenger Tyler Newman.
The court held that LE was “waiting on the current insurance card for the driver and was asking questions of the occupants based upon the “indicators” that [LE] observed.” Once the drug dog gave the indication, the Trooper had probable cause to search that vehicle for contraband and further extend the stop.
Considering the totality of the circumstances, the court found that the duration of the stop was not unreasonable and LE diligently conducted the investigation. Therefore, no violation of Newman’s Fourth Amendment rights had been demonstrated.
Note: See above.
State v. Zuniga (Ohio 2021) 2021-Ohio-196
Prolonged Detention; Reliability Foundation
This case is the appeal of the front seat passenger, Zuniga.
Zuniga claimed that LE had a duty to issue a citation or a warning and end the stop prior to the discovery of the narcotics, but did not provide any authority for that position. The court dismissed Zuniga’s characterization that this was a pretext stop because LE had a valid reason for stopping the vehicle (speeding) in addition to any information that the vehicle was carrying drugs. The court indicated that in a previous case, State v. Guinto 2013-Ohio-2180, a 31-minute delay attributable to the driver attempting to show valid proof of insurance was reasonable. Here, the entire stop was around 15 minutes until the PSD alerted and indicated. The court here found this stop was not impermissibly prolonged.
Note: See above.
U.S. v. Tillman (Tennessee 2021) 2021 U.S. Dist. LEXIS 15319
Odor of Marijuana as Probable Cause
Three different LEOs smelled marijuana emanating from the residence and a marijuana stem was found in the trash. LE also received three separate complaints regarding drug use and sales at this residence. This was sufficient probable cause for the search warrant to issue for the residence. The defense challenged the warrant by claiming the smell of marijuana was not enough probable cause.
The Sixth Circuit (this circuit) has indicated that it “may be true” the smell of marijuana standing alone supports probable cause to search a home. United States v. Elkins (6th Cir. 2002) 300 F.3d 638, 659; United States v. Yarbrough (6th Cir. 2007) 272 F. App’x 438, 443. As one district court recently pointed out, “[t]he Sixth Circuit is not alone in that conclusion” and a “majority of courts are in accord, holding the same.” United States v. Vaughn (E.D. Tenn. 2019) 429 F. Supp. 3d 499, 535 (citing United States v. Correa (11th Cir. 2009) 347 F. App’x 541, 545 (“The marijuana the agents smelled emanating from inside the houses provided probable cause to request and to issue the search warrants”). Therefore, the search was upheld as valid.
Note: Tennessee law does not allow for medical or recreational use of marijuana.
United States v. Murray (10th Cir. 2021) 2021 U.S. App. LEXIS 2237
Odor of Marijuana as Probable Cause
LE observed subject driving erratically and followed him to a gas station, waited for him to park and then approached him and engaged him in conversation after he came out of the station having purchased a drink. LE was in uniform and they discussed football, his route of travel, his girlfriend and the vehicle, which subject said was having a traction control problem. He said that his brother rented the vehicle for him and he was an authorized driver. LE asked to see the rental agreement and subject agreed and walked back to the vehicle with LE following. When subject opened the door, LE smelled a strong odor of raw marijuana. A search of the vehicle revealed 64 pounds of marijuana and a loaded gun.
The court initially addressed whether the initial conversation between LE and subject was a detention. The crucial test for determining whether a detention occurred is whether, taking into account all of the circumstances surrounding the encounter, LE conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. The court held that based on the video/audio of the encounter, it was clear this was a consensual encounter up to the point of LE smelling marijuana, as this court has long recognized that the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle.
Note: This is a federal case and therefore marijuana possession is illegal.
Palmer v. Santa Maria Police Dept. (9th Cir. 2021) 2021 U.S. App. LEXIS 1976
Excessive Force; Qualified Immunity
PSD was deployed in capturing a subject who escaped from LE earlier in the week and whom LE had reason to believe was armed with a handgun. It was well known that this subject had a lengthy and violent criminal history and he had escaped moments earlier by jumping over a second story balcony and was fleeing on foot. In addition, the area in which the PSD was able to take subject down was a busy commercial district where subject could have posed a danger to civilians. The handler appeals here from the district court’s order denying his motion for summary judgment on the basis of qualified immunity. The appellate court concluded that handler did not violate clearly established law when he allowed the PSD to remain on bite until subject had been handcuffed.
Because the issue appealed was qualified immunity, the court did not need to determine whether handler’s actions violated subject’s Fourth Amendment right to be free from the use of excessive force because, on the facts of this case, any such right was not clearly established at the time of the incident.
Subject also contends that handler delayed for an unreasonable amount of time before physically removing the dog when it failed to comply with commands. There was no evidence in the record to support this claim. Although the dog did not immediately release its bite when given the command to do so, subject failed to present any facts suggesting that handler waited more than a matter of seconds before intervening. The ruling denying qualified immunity was reversed and the case dismissed.
Note: Nothing really new here, but it is interesting to note that courts sometimes get it wrong. The lower court was clearly wrong, and I am not sure what its reasoning was and how it got so far off track. Again, it underscores the importance of clear report writing and testimony from our side.
N.J. v. Robinson (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 123
Odor of Marijuana as Probable Cause; Search of a Passenger
Subject was the front seat passenger in a car pulled over for having heavily tinted windows. Subject was smoking a cigar which LE asked him to extinguish. LE smelled a strong odor of marijuana coming from inside the vehicle and subject was shaking and breathing rapidly and deeply. While conversing with the driver, subject kept talking over the driver. LE asked driver to exit and a cover officer spoke to subject. LE returned to the vehicle and noticed some paraphernalia of marijuana ingestion. Subject was removed from the vehicle and vehicle searched but nothing was found. LE then searched subject’s person and asked if subject was armed. Subject answered affirmatively and simultaneously LE felt the butt of a handgun in subject’s waistband. Subject was immediately handcuffed and the gun retrieved. No marijuana was ever found.
The main issue here was whether the smell of marijuana provided probable cause to search subject (a passenger).
The court found that the stop was valid and that LE has the right to remove occupants from a lawfully stopped vehicle. The court also noted that at the time of the stop (prior to any legalization of marijuana), the smell of marijuana itself constitutes probable cause that a criminal offense has been committed and that additional contraband might be present. Here, not only did LE smell marijuana, LE noted there were items in the vehicle which indicated marijuana use. This, then, provided probable cause to search the driver. When that did not yield marijuana, it was logical to search subject. The court held this was true even though LE could not remember whether the odor was of raw or burnt marijuana.
Note: This is a great case in that it addresses whether a passenger can be searched when the car smells like marijuana and the driver is clean. The bad news is that the appellate court just based that conclusion on common sense and did not cite any legal authority. Still, basing something on common sense is appropriate and more of that should be happening. It will be interesting to see how New Jersey handles marijuana cases once legalization has passed completely. Also, make sure to note in your report whether the smell was of raw marijuana or burnt (or both). Although it didn’t make a difference with this court in this jurisdiction, in jurisdictions where the smell alone is not enough, this distinction may have legal significance.
State v. Conkey (Iowa 2021) 2021 Iowa App. LEXIS 43
Traffic Stop; Search of Passenger
This case involved three separate incidents; only the second one involved a PSD. That is the contact that is reviewed here.
LE stopped a car in which Conkey was a passenger. During the traffic stop, LE noticed that both the driver and Conkey appeared “very nervous.” Conkey was sweating, his hands shook, and he mumbled in response to the officer’s questions. Suspecting their nervousness signaled the presence of contraband, LE asked “if there were any weapons or drugs in the vehicle”; they said no. Still believing something was amiss, LE called for a PSD team.
About five minutes later, PSD team arrived. Handler noted the same indicators of drug use. After being asked, Conkey said he had a knife. Terry frisk revealed a knife while handler had to continually tell Conkey to stop reaching for his pockets. LE handcuffed Conkey and detained him. A free air sniff resulted in an alert. Conkey was searched and methamphetamine was found.
Conkey’s claim on appeal was that an alert to the vehicle did not provide probable cause to search Conkey’s person.
The court ruled for LE. “Considering these circumstances (as described above), it was reasonable for the officers to believe-based on their training and experience-that Conkey was under the influence and possessed drugs during this interaction. Deferring to the officers’ expertise, we find Conkey’s behavior and abnormal physical symptoms contributed to probable cause. Plus, the dog alerted to drugs near the front passenger door where Conkey had been sitting. So when the search of the car proved fruitless, it was reasonable for LE to believe that Conkey was in personal possession of drugs.”
Note: Another case regarding searching an occupant of a vehicle when a PSD alerts to the vehicle. See article above for more on this. The takeaway here is that the alert was part of the probable cause to search Conkey. The court based probable cause on the totality of the circumstances.
Dunnaway v. Commonwealth (Kentucky 2021) 2021 Ky. Unpub. LEXIS 5
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for speeding and lane violation. As LE approached, he could smell the odor of burnt marijuana. Driver asked out and his driver’s license was suspended. Passenger had rented the car. Consent was refused to search the car. While the traffic stop was proceeding, another LE arrived and also smelled the odor of burnt marijuana; he also noticed an open container of alcohol. Driver and passenger’s stories did not match and driver hinked up when asked about marijuana use. Vehicle was searched by LE and contraband was found (not marijuana though).
Driver contended LE did not articulate probable cause to believe the vehicle contained evidence of criminal activity and no other exception to the warrant requirement existed. Driver asserted his speeding, operating on a suspended license, improper lane use and having an open alcoholic beverage container—even when taken together—did not provide probable cause to justify a warrantless vehicle search. However, driver’s assertions ignored one extremely important fact which alone supported LE actions, according to the court. Both officers testified they detected the odor of marijuana emanating from the vehicle as they separately approached it. The trial court found this testimony to be credible and the appellate court was presented with no viable argument the testimony did not constitute substantial evidence supporting the trial court’s ultimate decision. Motion to suppress was denied.
Note: This appellate court said that the odor of marijuana alone was sufficient probable cause to search the vehicle. The court did not address the issue of burnt v. raw odor because in this jurisdiction, marijuana was illegal unless the marijuana was a hemp-derived CBD product with no more than 0.3% THC.
United States v. Smith (Tennessee 2021) 2021 U.S. Dist. LEXIS 10409
Traffic Stop; Odor of Marijuana as Probable Cause
This case involved two different contacts with LE; I am only reviewing the second one as the first one does not have any issues that are relevant to this discussion.
LE pulled Smith over for speeding. His person and back pack were searched and methamphetamine was found. The court held that the stop was lawful based on the speeding observed. Smith then argued that the smell of marijuana should not be able to justify the search of his backpack. Smith’s objection was overruled as the 6th Circuit (Tennessee is in the 6th Circuit) has ruled that the odor of drugs can support probable cause to search a vehicle (U.S. v. Terrell (6th Cir. 2012) 483 F. App’x 161, 165). A motorcycle is a vehicle under the automobile exception to the warrant requirement, which includes the search of containers. Smith did not raise any evidence contradicting LE testimony that LE smelled marijuana during the traffic stop, and the court affirmed the conviction.
Note: Nothing really new here. In those jurisdictions where marijuana remains illegal, the smell of marijuana continues to provide LE with probable cause to search.
Garcia v. Brown (South Carolina 2021) 2021 U.S. Dist. LEXIS 8400
Odor of Marijuana as Probable Cause; Qualified Immunity
Garcia was found sleeping in his vehicle in a closed WalMart parking lot. LE rolled up on him and positioned the cruiser’s headlights on Garcia’s vehicle. LE and Garcia stepped out to converse with each other. LE smelled marijuana on Garcia from about 6 feet away. Based on this, LE searched the vehicle and marijuana was found. Garcia claimed he had a California medical marijuana card which he said LE seized. Garcia was cited for possession and released. Garcia then filed a federal civil rights claim alleging among other things a violation of his 4th Amendment rights. LE filed a motion for summary judgment.
The video footage of this contact was not reviewed by the trial court because it was not in a format the court could access. In addition, Garcia claimed it was “doctored.” However, the court did consider the motion for summary judgement using the qualified immunity doctrine. First, LE did not need reasonable suspicion to approach Garcia’s vehicle as this was a consensual encounter. Garcia claimed that LE used their blue lights when they contacted him; however, Garcia failed to present any admissible evidence to support this assertion. Once Garcia exited his vehicle and LE smelled marijuana, Garcia was seized, implicating the Fourth Amendment. However, the seizure and the subsequent search of the vehicle was lawful because “the Fourth Circuit has consistently held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place,” and that there was no evidence the stop was unreasonably prolonged. In addition, LE was entitled to the protection of qualified immunity based on the facts as set forth above.
Garcia’s claim that he was targeted because of his race was dismissed by the court as LE could not identify Garcia’s race until LE approached the vehicle and this evidence was not disputed by Garcia.
Note: Nothing surprising here, including the fact that a disgruntled arrestee filed a really silly case. The court easily found qualified immunity based on the facts.
State v. Bowen (Oregon 2021) 2021 Ore. App. LEXIS 38
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for an unspecified violation. LE smelled the odor of marijuana, so LE extended the stop to question driver about it. Driver made incriminating statements that led to the seizure of marijuana and other evidence.
The court held that this case comes down to the marijuana odor that LE smelled upon approaching driver’s car. “The crux of the issue is whether the odor of marijuana tipped the facts here into the realm of reasonable suspicion. We conclude that it did not—at least on this record, where the evidence was sparse as to what the trooper actually smelled. Marijuana has been legal for recreational use under state law since 2015. Diesel v. Jackson County, 284 Ore. App. 301, 302, 391 P3d 973 (2017) (summarizing changes in Oregon’s marijuana laws since 1998). . . . [O]ur historic treatment of all marijuana odors as equal for purposes of reasonable suspicion was grounded in “the legal status of marijuana as contraband in any amount,” a premise that no longer applies, requiring us to adjust our analysis accordingly going forward. At the time of the stop here, an adult could legally possess up to eight ounces of usable marijuana . . . and could legally deliver up to one ounce of homegrown marijuana to another adult.”
“With that in mind, we note that, beyond the odor of marijuana being “obvious” when the trooper approached defendant’s car, there was no evidence as to how strong the odor was. A very small amount of marijuana may create an “obvious” odor, depending on the circumstances. There also was no evidence as to whether the odor was of fresh marijuana (as the trooper’s suspicion of delivery might suggest) or burnt marijuana (as his consideration whether defendant was impaired or intoxicated might suggest). Nor was there evidence about the locus of the odor, such as it coming from defendant, his passenger, the luggage in the back seat, or the trunk. Finally, there was no evidence that the trooper had training or experience that led him to recognize what he smelled as fresh marijuana in a larger quantity.”
“We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana. The marijuana laws have changed since defendant was arrested, so there is little point in hypothesizing as to what would have been sufficient to give rise to reasonable suspicion in this case. It is possible that more detailed testimony from the trooper about what he smelled—beyond just an “obvious” odor of “marijuana”—might have tipped the scales, although it is impossible to know what the trooper might have said if questioned in more detail. Regardless, based on the record as it exists, the objective facts articulated by the trooper were insufficient to give rise to reasonable suspicion of unlawful delivery of marijuana. It follows that the trial court erred in denying defendant’s motion to suppress.”
Note: this case is in keeping with other jurisdictions that have legalized marijuana. The smell of marijuana in these jurisdictions is only part of probable cause which requires LE to continue to investigate to determine if there are any other factors that may provide probable cause such as whether the smell is burnt or raw or overwhelming such that legal possession is not reasonable. This also means that whoever is investigating and then testifying have the requisite training and experience to draw these conclusions for the court. These observations and requisite training and experience must be drawn out in court so that the appellate court is not in a position of ruling against LE because it didn’t have all the facts. The prosecutor in the lower court did not make a good record and that’s just an inexcusable position to be in.
People v Blandford (New York 2021) 2021 N.Y. App. Div. LEXIS 85
Traffic Stop; Prolonged Detention
Traffic stop for license plate violation and seatbelt violation. Based upon past surveillance and general police knowledge, LE knew driver was involved in the sales of illegal narcotics. While following the vehicle, LE contacted PSD team and requested presence at the scene. Driver pulled into a convenience store parking lot which LE knew was a trouble spot for drug transactions. LE watched as driver went into the store for about 5 minutes and saw when driver came out that he contacted several people in the parking lot with whom he hugged and shook hands. While LE did not see any drugs change hands, he knew it was common for dealers to pass drugs using a handshake or a hug. Driver and passenger then drove away. The PSD team had arrived and also watched driver leave. Driver lit up by handler and he slowed down but delayed pulling over. Driver was making furtive movements inside the car, including doing something in the floorboard area or the back seat. Driver finally pulled over and handler approached. The passenger was permitted to leave and driver was asked out of the vehicle. Handler asked him about his stop at the convenience store and driver was squirrely. Driver gave limited consent for the backseat and passenger seat area. Handler retrieved his PSD and did a free air sniff. The PSD alerted to the trunk and contraband was found in the trunk.
The court held the traffic stop was supported by probable cause. The court also held that the stop was not prolonged because the facts, taken in their totality, created reasonable suspicion of additional crimes.
The dissent would have ruled that the above facts were not enough to create reasonable suspicion to allow for the free air sniff.
Note: There is a throwaway line in the opinion that the search of the trunk was justified because the PSD alerted to the trunk. That’s not actually the state of the law; an alert on the vehicle allows search of all containers and areas of the car. This is a misconception that many judges and prosecutors have; we need to educate prosecutors about this and they in turn can educate the judiciary.
United States v. Morris (West Virginia 2021) 2021 U.S. Dist. LEXIS 7548
Traffic Stop; Consent; Prolonged Detention; Alert as Probable Cause
Traffic stop of an individual who was seen meeting at a hotel with a known drug person (Marshall) for speeding and apparently expired Virginia registration (Virginia Governor had extended the expiration date, it was later discovered). During routine questioning, driver lied about his travel route. When confronted, he admitted stop at the hotel. During the check of driver’s license, LE learned that he had an extensive criminal history, including drug crimes. Driver removed and patted down (driver gave consent); permission to search the car was denied. At that time, LE retrieved his PSD and conducted a free air sniff. PSD alerted on the vehicle. Vehicle searched and contraband found.
The court initially addressed the validity of the traffic stop. The court was unconcerned that the vehicle was legally registered because LE in this state would not be aware of an extension from another state. The court also accepted the testimony that driver was speeding.
As for finding that the detention was justified by additional reasonable doubt, the court stated; “I find that these three facts adequately support LE’s decision to expand the scope of the stop and conduct the PSD sniff. LE arrived at the hotel to continue an already ongoing drug investigation of Marshall where driver was observed speaking with her in an alley before exiting the parking lot. Then, once he had been pulled over, driver lied to LE and claimed that he had not stopped anywhere since returning to Charleston when he had, in fact, stopped at the hotel to speak with Marshall. These actions, combined with Defendant’s prior history with drug activity, were enough to support a finding that reasonable suspicion existed.
Finally, the court addressed whether an alert was sufficient to provide probable cause to search the vehicle, concluding that in Virginia, a positive alert from a drug detection dog, in and of itself, provides probable cause to search a vehicle. U.S. v. Branch (4th Cir. 2008) 537 F.3d 328, 340 n.2.
Note: This is a good example of making sure the court was aware of all the facts that LE knew about the investigation which was used to support additional reasonable suspicion to extend the stop to allow for PSD sniff.
United States v. Goins (Ohio 2021) 2021 U.S. Dist. LEXIS 1118
Reasonable Suspicion; Prolonged Detention
Handler conducted traffic stop for lane violation and obstructed plate. Driver was excessively nervous; shaking, pulse pounding, etc. Driver could only produce a driver’s license; no registration or proof of insurance was presented. LE noticed small rubber bands often used to band currency when the passenger door was opened to look in the glove box. LE asked driver out so she could see the plate violation for herself. She rolled up the window and locked the door as she got out. Sgt. LE arrived and handler turned driver over to him to complete the traffic violation duties. Handler then retrieved PSD who alerted. At the time of the alert, Sgt. was still waiting for the return on the warrant check.
The court made short work of finding probable cause for the traffic stop which wasn’t contested. However, driver claimed that the stop was prolonged to allow for the PSD sniff. The court held first that the free air sniff occurred simultaneously with Sgt. escorting driver to his cruiser and initiating the warrants search. And since the stop could not be completed before the warrant check was finished, the free air sniff was completed, there was no prolongation at all.
The court went on to hold that even if there was a prolongation of the traffic stop, “[driver’s] suspicious behavior—both before and after she was pulled over on two traffic violations—was, when considered together, consistent with someone engaged in criminal activity. Even though she was already traveling under the posted speed limit, when she saw LE, she further slowed her vehicle. Once she was stopped and questioned by the trooper, she was shaking, her respirations quickened, and her right carotid artery was noticeably pulsating. Small rubber bands commonly used to secure rolls of currency were visible in the console of her car. She also locked the doors when she was directed to exit the vehicle. LE testified that, based on his experience and training, these facts were suggestive of illegal drug activity, and the Court finds that, based upon the totality of the circumstances, reasonable suspicion existed to perform the dog sniff to test that suspicion.”
Note: Nothing really new here, but again, good articulation of driver’s behavior and appearance allowing the court to make its findings in favor of LE.
Commonwealth v. Thomas (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 133
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause
Traffic stop for heavy tint and two blown stop signs in known high drug and violent crime area. Driver handed over his driver’s license and told LE that the registration and insurance proof were in the trunk and LE would need a warrant to obtain those items. Driver started squirming in his seat which made LE concerned driver might be armed with a weapon. LE smelled burnt marijuana and driver said that he didn’t smoke but a friend did. Terry frisk found a wallet bulging with cash and partner LE said he could see plastic containers full of cash. PSD team was called and arrived about 30 minutes later. PSD alerted and LE found heroin and guns.
Driver only contested the prolongation of the stop to allow time for the PSD team to arrive. First, the court stated, “[T]here need not be probable cause to conduct a canine search of a place; rather, the police need merely have reasonable suspicion for believing that narcotics would be found in the place subject to the canine sniff.” Commonwealth v. Rogers (Pennsylvania 2004) 578 Pa. 127, 849 A.2d 1185, 1190.
The court went on to state that LE also observed heavily tinted windows in violation of the Pennsylvania Motor Vehicle Code, smelled an unusual odor coming from driver’s vehicle, saw driver searching around nervously and driver was in possession of a large amount of currency, indicative of drug trafficking. These facts consequently gave LE reason to suspect that driver was in possession of a controlled substance and therefore, there were sufficient facts to justify the expansion of the investigatory detention.
Note: Interesting that there is language in this opinion that reasonable cause is necessary prior to a PSD team being allowed to conduct a free air sniff. That is not the federal standard nor in most states. It remains to be seen whether this is a Pennsylvanian quirk in the law or just dicta (additional language not necessary for the holding of the case).
United States v. Wofford (New York 2021) 2021 U.S. Dist. LEXIS 5587
Traffic Stop; Odor of Marijuana as Probable Cause; Reliability Foundation; Cueing
LE was conducting surveillance on subject and his vehicle at a specified location. One officer observed what appeared to be hand to hand sales. When the vehicle left the location, LE followed and observed vehicle fail to completely stop at a stop sign and commit a turn signal violation. Driver handed requested documents through the window which was rolled down only a few inches. LE smelled a strong odor of raw marijuana coming from the vehicle. LE also noticed an open container of alcohol and what appeared to marijuana in freezer bags. LE believed the amount was over the legal limit. Driver told to exit the car; he refused. A superior authorized LE to break the window of the vehicle to access the interior. Driver got out of the car before windows were broken. A gun and narcotics were found in the vehicle. During a second stop, driver had a federal warrant out for his arrest. A PSD alerted on the vehicle and marijuana was found. Handler testified to certification and training of PSD. The defense hired an animal behaviorist who intimated that handler was cueing the PSD. Driver claimed PSD was alerting to food in the vehicle.
The court considered the first stop and found that LE acted appropriately. The traffic stop was valid and, even if LE was mistaken that driver committed a vehicle offense, this mistaken belief would have been objectively reasonable. The smell of marijuana (noticed by 5 LE officers on scene) justified the search of the vehicle.
In the second stop, driver challenged the reliability of the PSD. The court held that even though the PSD had some non-productive alerts, the PSD was deemed reliable based on the training and experience of the team, particularly because the PSD did not have any false positives in training. The court also didn’t buy the cueing argument, finding that the evidence (including police video of the incident) showed that the PSD was not cued by the handler. The court also found that the handler was not told that the location of the suspected marijuana. The motion to suppress was denied.
Note: “Cueing” seems to be gaining favor as the new defense schtick. Making sure that your report details any issues and explain them. Body cams and dash cams are also helpful. Here, the defense appeared to be just making stuff up, but this “cueing” complaint seems to be a favorite among defense attorneys. If you are still a newer team and you need to use hand gestures to guide the PSD, just explain it. That should put paid to any silly arguments by the defense.
United States v. Sanders (New York 2021) 2021 U.S. Dist. LEXIS 4982
Traffic Stop; Odor of Marijuana as Probable Cause
This appeal addressed two objections by the defendant Sanders; 1) the traffic stop was not lawful and 2) the police officer who approached the vehicle did not have probable cause to search the vehicle because the odor of marijuana was not strong enough to warrant a full search.
The court made short work of the first objection, and found that defendant had not laid an appropriate foundation for his objection and this was dismissed.
The second issue was also quickly dealt with. “Here, the police officer not only smelled marijuana “emanating from the vehicle” and was informed by co-defendant Kidd that he had smoked some earlier in the day, she also observed that Defendant only rolled down his window three-quarters of the way and “appeared to be moving overly slow and cautious in a way that was not normal”. Based on the totality of the circumstances, there was probable cause to search the vehicle.
“While “states permitting or decriminalizing the possession of marijuana for recreational or medicinal purposes have developed different standards for determining when marijuana’s odor can give rise to a search” . . . , New York’s law decriminalizing the smoking and possession of small amounts of marijuana did not take effect until months after Defendant’s January 21, 2019 traffic stop. Defendant does not claim that he or co-defendant Kidd informed officers that the marijuana used was medical in nature. In addition, marijuana is a Schedule I controlled substance under federal law and possession and distribution of marijuana remain a federal offense.” This issue was also dismissed.
Note: The issue for the court really was that defendant did a terrible job in the lower court in preserving the facts on the record. It is a good reminder to us to make sure reports and testimony are clear, concise and supported by facts which the court can use to easily find probable cause.
People v. Jesus R. (In re Jesus R.) (California 2021) 2021 Cal. App. Unpub. LEXIS 135
Odor of Marijuana as Probable Cause/Reasonable Suspicion; Terry Frisk
School resource officer obtained information that a juvenile was in possession of marijuana. Three juveniles, including Jesus R., smelled of marijuana. Officer asked juvenile outside and performed a Terry frisk, finding a folding knife. The officer justified the pat down in her testimony by saying that it has been her experience that approximately 1 in 3 of children who smell of marijuana are also in possession of a weapon. The court found that this was not enough to justify a Terry frisk and granted the motion to suppress.
At the appellate level, the State argued that the smell of marijuana was enough reasonable suspicion to search the minor for marijuana. However, this argument was not made in the lower court. Since the People did not rely on the smell of marijuana for the frisk but advanced the theory that a Terry frisk was legally permissible, the appellate court did not allow the People to appeal on a different theory of law.
Note: If the State had advanced the theory that the smell of marijuana on a juvenile presented enough evidence that LE was authorized to search the juvenile, the State probably would have won the motion to suppress since possession by minors is still illegal in California. Here, however, they only argued that the search was valid as a Terry frisk, which would require facts that established a probability that the minor was armed and/or dangerous. The State did not meet that burden and therefore the motion was granted and the case dismissed. This is another reminder that all theories of admissibility should be argued at every proceeding to preserve all arguments for the appellate court.
Branch v. State (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 44
Traffic Stop; Odor of Marijuana as Probable Cause
Driver was stopped for reasons unrelated to the presence of an illegal substance. During the stop, LE smelled a strong odor of burnt marijuana coming from the vehicle. When asked, driver produced a roach and said he smoked earlier. LE then searched the vehicle, finding contraband (although no additional marijuana other than trace amounts of THC wax).
Despite the fact that Branch produced a burnt marijuana joint, the court accepted that LE suspected additional marijuana was in the vehicle and therefore the search was permissible and the stop was permissibly extended. the officer suspected that additional contraband was in the car. Under Thiel, the officer had “probable cause to search for more anywhere in the car where one might reasonably expect to find marijuana.” Id. As such, the officer could permissibly expand the traffic stop to search Branch’s car. This decision was based on precedent in this jurisdiction at State v. Thiel (Minnesota 2014) 846 N.W.2nd 605, 611.
Note: Minnesota has not legalized recreational marijuana.
State v. Eady (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 25
Sniff of Door Seam; Curtilage; Odor of Marijuana as Probable Cause
Search warrant obtained for door seam PSD sniff of an apartment. Probable cause was based on the following: LE learned that a confidential informant (CI) had recently purchased marijuana from subject. The CI advised that subject lived at the apartment in question, that the CI purchased marijuana multiple times from subject at the apartment within the past two-to-three months, and that the CI has seen subject in possession of firearms and large amounts of money. Subject was a convicted felon with a history of narcotics convictions and was prohibited from possessing firearms. LE also received a police report dated February 18, 2018, that listed subject and his girlfriend as persons involved in a possible domestic disturbance at the apartment.
Search warrant in hand, and with owner’s permission to be in the building, PSD alerted on the door seam; in addition, human LE also smelled marijuana. A second search warrant issued for the apartment where contraband was found.
The court held that because subject did not argue in the lower court that the first search warrant lacked probable cause, he forfeited that argument in the appellate court. The appeal was denied on this ground (he did get resentencing on an unrelated issue).
Note: This is a great example of how PSD teams can work within the law and still succeed. I hadn’t thought of getting a warrant to sniff a door, but why not? Probable cause existed and the warrant got LE to the “curtilage” of the apartment, the seam of the door. The court did not specifically rule on this issue, but it’s a great example of LE creativity within the bounds of the law.
People v. Jones (New York 2021) 2021 N.Y. App. Div. LEXIS 95
Odor of Marijuana as Probable Cause; Reliability Foundation
The trial court’s denial of the defendant’s suppression motion was proper because 1) LE’s uncontradicted testimony that he observed defendant driving with a license plate partially obstructed provided probable cause for the stop; and 2) The smell of marijuana provided probable cause to search the vehicle, including any of the contents of the vehicle that may conceal the contraband sought, as well as driver’s person. The court also found that although LE’s testimony as to his training and experience was minimal, it established that he had completed drug training to recognize drugs and detect the smell of marijuana.
Note: New York has medical marijuana only at this time. While this case doesn’t really raise any new issues, it shows that introducing a foundation of the training and experience of human LE in recognizing the smell of marijuana is required just as it is required of a PSD.
Moore v. Monaghan (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 849
Odor of Marijuana as Probable Cause; Qualified Immunity
Traffic stop for erratic driving. LE smelled raw marijuana. When subject refused to cooperate in presenting driver’s license and registration, he was “guided” out of the car and Terry frisked. (Subject alleged that he was yanked out, kicked, tripped and body slammed to the ground, suffering injuries). LE claimed to have found two plastic containers in subject’s pockets. The vehicle was then searched, finding bulk marijuana. At the hospital, no injuries were found, but it was suspected that he was under the influence of or withdrawing from controlled substances or alcohol. Subject’s criminal case was dismissed after a motion to suppress was granted because the subject’s version of events was different than LE and LE testimony was “confused and contradictory,” and the court found at least one officer not credible. Therefore, in this civil case, because there is a genuine dispute of facts, the 1983 claim of unlawful search and seizure will move forward toward trial. All of the other claims however were dismissed.
The court addressed whether subject can move forward on a 1983 action when contraband is found. “Mr. Moore argues that the lack of probable cause to initiate the search extends to the lack of probable cause for his arrest. He is mistaken. Although a plaintiff whose privacy is invaded may recover damages in a § 1983 action for an unlawful search or seizure, that same plaintiff is not entitled to damages when the search yields incriminating evidence. Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000).”
The Court can consider the items found during the allegedly unlawful search of his person and his car. The exclusionary rule certainly applies in criminal cases but it is not imported to the civil docket in § 1983 proceedings. As this Court has explained, “[t]he lack of probable cause to . . . search does not vitiate the probable cause to arrest, because (among other reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.” . . . . Thus, it is immaterial to the false arrest and imprisonment claims whether the officers could smell marijuana either on Mr. Moore or in his car, although it is relevant to whether the initial stop and search were lawful. Likewise, suppression of the marijuana in the criminal proceeding has no bearing whether the officers were justified in arresting Mr. Moore after recovering the drugs.”
Because the officers had probable cause to arrest Mr. Moore, the record did not support his false arrest and false imprisonment claims and the court granted a summary judgment in favor of LE on those claims.
However, the court ruled that at this point in the litigation, LE was not entitled to a ruling of qualified immunity. Because this was a summary judgment motion brought by LE, the court had to construe the facts in the light most favorable to subject and since he claimed LE fabricated the smell of marijuana and lied about subject not cooperating with LE, qualified immunity cannot be found at this juncture. However, the defense of qualified immunity can be raised as a defense in trial.
Note: Probable cause was not an issue because in Pennsylvania, the smell of marijuana provides probable cause to search the vehicle, which is why LE won the summary judgment on false arrest and false imprisonment.
State v. T. T. (In re T. T.) (Oregon 2021) 2021 Ore. App. LEXIS 2
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause
LE lawfully extended a traffic stop based on reasonable suspicion that the vehicle was being used to import marijuana to Oregon under Or. Const. art. 1, § 9 because LE formed a subjective reasonable suspicion of a specific drug offense—the interstate transport of marijuana. Although that reasonable suspicion was based, in part, on profiling information that carried minimal weight, it was accompanied by other non-profiling facts, including the driver’s attempt to conceal his travel pattern.
Traffic stop for speeding. At the passenger window, LE smelled raw marijuana but could not see any marijuana. 3 subjects were in the car; driver asked out of vehicle. LE smelled marijuana at this point, but it was not coming from the driver. The two juvenile passengers were taken out of the car and each told different stories from the driver and from each other. Driver admitted to buying an ounce of marijuana in California (stop was in Oregon). Basing their probable cause on the crime of providing marijuana to minors, the vehicle searched and marijuana, cash and a gun were found.
Court held initially that juvenile passenger was not detained until LE asked him to step out of the vehicle. (Juvenile had forfeited his argument that the detention happened as soon as the car was stopped in the lower court, so this court did not address it. However, the court did indicate that Oregon law does not result in the seizure of a passenger automatically when a car is pulled over, but that certain factors can create a detention. The court said this was a complicated argument and declined to resolve the issue.)
First, the court conceded that because marijuana is now legal in certain circumstances, the smell of marijuana alone may not create probable cause. However, for juveniles, possession of any amount is illegal. Also illegal is the importation of marijuana into Oregon from another state. That is what happened here based on the driver’s admission.
It appeared that the car had been rented less than 24 hours earlier at the Portland airport; that the vehicle’s occupants had made a roundtrip to Redding, California—approximately seven hours each direction—in the same day; and that the driver had attempted to conceal how long they had been in Redding. Although there was nothing illegal about that travel pattern, it was an unusually quick roundtrip. And, the driver’s story about when they had left Redding was not simply implausible or suspicious; rather, it was an attempt to conceal how unusual the travel pattern was.
In this case, the court held, LE formed a subjective reasonable suspicion of a specific drug offense—the interstate transport of marijuana. Although that reasonable suspicion was based, in part, on profiling information that carries minimal weight in establishing reasonable suspicion for purposes of the Oregon Constitution, it was accompanied by other non-profiling facts. The odor of marijuana, while contributing little to the reasonable suspicion analysis for general crimes of possession or delivery of marijuana, in the wake of Oregon’s decriminalization of cannabis, is more probative in relation to the interstate import and export statute, which is not limited by quantity. Although close, those facts, in combination with the driver’s attempt to conceal their travel pattern, established that LE’s subjective reasonable suspicion of ORS 475B.227(2) was objectively reasonable.
Note: In this case, it was important that LE established probable cause of illegal activities using facts over and above the smell of marijuana. Since marijuana is now legal in Oregon, the smell of marijuana does not establish probable cause in and of itself. Here, though, there were two minors and the admission that driver brought marijuana into the state from California, both crimes in Oregon.
Terry v. State (Georgia 2021) 2021 Ga. App. LEXIS 34
Traffic Stop; Prolonged Detention
Traffic stop was initiated because vehicle’s windows were darkly tinted and LE could not see into the vehicle. The license plate was partially obstructed as well. The driver gave LE a Florida ID card in lieu of a license and claimed the passenger was the owner of the vehicle, but she was only a secondary owner. Driver turned out to have a suspended license. The passenger had a valid license. LE allowed the vehicle to be released to her. Passenger denied consent for a free air sniff. However, LE had a PSD sniff the vehicle which alerted. Lots of contraband was found in the vehicle.
Because LE gave passenger’s license back to her and told her she was free to leave, the mission of the traffic stop was over at that point. That meant that the PSD sniff occurring after this was an impermissible extension of the traffic stop. The court held also that the discrepancies of the occupant’s stories, their nervousness and lack of luggage was not enough to extend the traffic stop to include a PSD sniff.
Note: This was an unfortunate timing error. Had the PSD been taken around the vehicle while the license status of the occupants was still being investigated, there would not have been a problem.
Sweiha v. County of Alameda (California 2021) 2021 U.S. Dist. LEXIS 16681
Excessive Use of Force
Mentally ill subject had broken in and barricaded himself in a room with a bed ridden priest, claimed he had a knife and would kill the priest. After announcing a PSD would be released, subject said he would stab the PSD and he was holding a knife to his throat. The priest was in a hospital bed and on life support. The deputies told subject several times to “drop it,” meaning the perceived weapon, and to leave the residence. Subject threw a small statue at LE and shut the door. PSD was released into the room as LE perceived subject was holding a metal object (which turned out to be a wooden cross). As the dog was on the bite, subject, with his hands up and in front of his body, then said repeatedly, “I’m sorry, I’m sorry,” as he moved down to the floor. Then he began screaming, presumably because the dog was biting him. The video shows the back of subject’s legs and feet, meaning, he was on his stomach, and the audio reflects that he was being handcuffed. Then, a deputy said, “call your dog, standby, stand by, I got his arm” and, again, “call your dog.” After subject was handcuffed, handler released the PSD. The incident — from entry to release of the bite — lasted about 30 seconds. After the incident, LE saw several potential weapons in the bedroom: scissors, a wrench, and the wooden cross. Subject claimed the PSD bit his sleeve first, he surrendered and handler ordered PSD to bite until after subject was handcuffed. The court held that because there was a material issue at fact in dispute (the video was not dispositive), the claim of excessive force on the alleged second bite was allowed to go forward. Everything else, including claims against the other LE present, the agency and the claim against the handler for the initial bite were dismissed.
Note: Because this was a summary judgment motion, the court had to accept the facts as stated by subject. However, it seems that this case is headed for a small nuisance settlement as clearly subject was a danger, was not following instructions and was resisting.
Diallo v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 63
Traffic Stop; Odor of Marijuana as Probable Cause; Search Incident to Arrest
Traffic stop for lane and turn signal violations. Driver stopped in the slow lane of the highway rather than pulling over on the shoulder. He was directed to the shoulder and LE called for backup, fearing the driver might rabbit. LE approached the vehicle and smelled marijuana. The driver’s eyes were also glassy indicating that he might have been under the influence. The smell of marijuana was more strongly associated with the passenger. Driver was removed from the vehicle and patted down. LE found a taser, marijuana and some Percocet. Driver was handcuffed. LE then searched the vehicle, finding contraband not only in the passenger compartment but behind a panel underneath the center console (LE was alerted to this panel because it was not seated well, appearing to have been removed and replaced).
Driver filed a motion to suppress. The court found that the traffic stop was amply supported by the evidence. Further, driver’s behavior in not pulling to the side of the road, coupled with the smell of marijuana on his person, followed by the discovery of marijuana, pills, and a taser on driver’s person, provided more than probable cause to suspect that further contraband might be found in the vehicle. This suspicion was buoyed by the persistent odor of marijuana in the vehicle, even after drivere, and his on-person baggie of marijuana, were removed from the vehicle. LE reasonably concluded that there may remain more marijuana in the vehicle.
Driver then complained that the removing of panels was borne out of a “hunch” and thus was not supported by probable cause. However, given the contraband found on driver’s person, the scales found beneath his seat, and the jar of marijuana found in the trunk of the vehicle, LE clearly had probable cause. LE suspected that the panel, which appeared to have previously been removed and re-installed, might have been removed to secrete contraband. Driver suggests that the panel might have been removed to effect the change of a fuse or bulb, and its appearance of having been previously removed was not inherently suspicious. However, there is no evidence that the subject panel was one which housed fuses or bulbs, which would have been manufactured and installed with an expectation of removal and replacement. Rather, the evidence suggested here that the panel was one not intended to be removed, because it was not capable of being replaced such that its prior removal was not obvious; if a panel is made to be removed, it is made to be replaced without having obviously been previously removed.
Further, probable cause does and can extend to all portions of a vehicle where the objects of the search can be hidden. “Police . . . who have probable cause to believe that the objects of the search are concealed somewhere within the vehicle may conduct a warrantless search of the vehicle and all the compartments and containers thereof as well as the contents thereof that are not in plain view.” Estep v. Commonwealth (Ky. 198)3 663 S.W.2d 213, 215.
The court therefore found LE had sufficient probable cause to search the vehicle including behind the panel.
The court also addressed whether LE could justify the search as incident to arrest. As driver was lawfully seized and had been arrested for possession of contraband, and as LE noted that the smell of marijuana—one of the items of contraband found on driver’s person—persisted in the vehicle even after he had been removed from it, it was appropriate for LE to search the vehicle incident to his arrest. “A reasonable reading of Gant, as set forth by our Supreme Court in Owens, clearly holds that the exception is also available if it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Commonwealth v. Elliott (Ky. App. 2010) 322 S.W.3d 106, 110.
Note: Kentucky has not legalized marijuana.