[ View Archives ]

Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from January 2022 (and a couple from December 2021 which were published late). (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. Just remember the arguments in these cases can be used; the case just can’t be cited as precedent in court.)

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

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

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



Amazon.com Inc. announced that it is supporting a new bill introduced by a freshman Republican member of Congress to federally decriminalize marijuana. This is an interesting development, one that shows the enormous financial backing legalization has in the country. I’ll keep you updated.


Mississippi has become the 37th state to legalize medical marijuana after Republican Gov. Tate Reeves signed into law on February 2, 2022 the Mississippi Medical Cannabis Act.

Two bills introduced in the Florida Senate on February 4 would legalize and tax recreational marijuana less than a year after the Democrats’ last attempt to pass legalization legislation failed to move forward in the state’s Republican-controlled Legislature.

This website will continue to monitor the status of marijuana legalization and how this ever evolving landscape affects handlers as well as supervisors and policy makers for K9 units and teams.


State v. Sirucek (Texas 2022) 2022 Tex. App. LEXIS 585 (Unpub.) – Prolonged Detention; Reasonable Suspicion

United States v. Fuchs (Tennessee 2022) 2022 U.S. App. LEXIS 2266 (Unpub.) – Traffic Stop; Odor of Marijuana as Probable Cause

Griesmar v. City of Stow (Ohio 2022) 2022 U.S. Dist. LEXIS 12684 – Traffic Stop; Prolonged Detention; Violation of Civil Rights; Smell of Marijuana as Probable Cause; Monell Liability

United States v. Goodwill (Illinois 2022) 2022 U.S. App. LEXIS 1844 – Traffic Stop; Ordering Occupants Out; Prolonged Detention

United States v. King (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 8024 – Traffic Stop; Parcel Sniff; Alert as Probable Cause; Reasonable Suspicion

People v. Bjorlie (Illinois 2022) 2022 IL App (2d) 200118-U – Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

United States v. Conner (Alaska 2022) 2022 U.S. Dist. LEXIS 8664 – Traffic Stop; Maintaining Training and Deployment Logs; Reliability Foundation

United States v. Reyes (Massachusetts 2022) 2022 U.S. App. LEXIS 1417 – Traffic Stop; Prolonged Detention; Consent

United States v. Brown (Tennessee 2021) 2021 U.S. Dist. LEXIS 250888 – Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

State v. Thompson (Arizona 2022) 2022 Ariz. LEXIS 37 – Traffic Stop; Consent; Cueing

Huipio v. City of San Jose (California 2022) 2022 U.S. Dist. LEXIS 11493 – Excessive Force; Monell Liability

United States v. Davis (West Virginia 2022) 2022 U.S. App. LEXIS 688 (Unpub.) – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Balkissoon (New York 2022) 2022 U.S. Dist. LEXIS 4635 – Odor of Marijuana as Probable Cause; Plain View; Search Incident to Arrest

United States v. Keith (Georgia 2021) 2021 U.S. Dist. LEXIS 249938 – Traffic Stop; Prolonged Detention

Leib v. State (Iowa 2022) 2022 Iowa App. LEXIS 19 (Unpub.) – Traffic Stop; Reliability Foundation

Gubari v. Commonwealth (Virginia 2022) 2022 Va. App. LEXIS 4 (Unpub.) – Traffic Stop; Reasonable Suspicion; Prolonged Detention

People v. Gamboa-Jimenez (Colorado 2022) 2022 Colo. App. LEXIS 72 – Traffic Stop; Sniff as Probable Cause; K9 Entry into Vehicle; Reasonable Suspicion

United States v. McNeil (North Carolina 2022) 2022 U.S. App. LEXIS 1082 (Unpub.) – Traffic Stop; Prolonged Detention

United States v. Sykes (Illinois 2022) 2022 U.S. Dist. LEXIS 978 – Traffic Stop; Prolonged Detention

State v. Arroyo (Georgia 2022) 2022 Ga. App. LEXIS 1 – Sniff of Apartment Curtilage


State v. Sirucek (Texas 2022) 2022 Tex. App. LEXIS 585 (Unpub.)
Prolonged Detention; Reasonable Suspicion

LE was approached by a woman who said Sirucek had given her friend molly (MDMA) and pointed out his car out to LE. LE contacted Sirucek in the car. He denied selling drugs after a long pause. He denied consent to search. LE then waited for a K9 to arrive to sniff the vehicle. They waited about 3 minutes during which time LE held onto Sirucek’s ID cards. K9 alerted on the car. A search revealed contraband, including MDMA.

The court held that the anonymous tipster was reliable given that she gave information face to face to LE (with whom she did not have a connection) and the contact made her readily identifiable and able to be held accountable. There was corroboration, given that Sirucek met the physical description given by the informant, that Sirucek was 43 but said he was at the location for spring break (way too old unless he’s chasing his market) and his delay in responding to whether he was selling. This was enough to demonstrate reasonable suspicion of drug trafficking sufficient to detain Sirucek to wait for the K9 team to arrive.

Note: Don’t forget that the reasonable suspicion standard applies in all situations, not just traffic stops. Here, there was enough fishy-ness as well as a corroborated informant tip to provide reasonable suspicion of drug trafficking such that a 3 minute wait for a K9 team was permissible.

United States v. Fuchs (Tennessee 2022) 2022 U.S. App. LEXIS 2266 (Unpub.)
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for no license plate. Fuchs stopped in a parking lot of a nearby business, partially blocking its driveway. Fuchs was immediately argumentative with LE, claiming LE was lying about the missing plate. Fuchs was not in possession of a driver’s license or the registration for the vehicle. LE also smelled marijuana upon contact with Fuchs.

After gathering information sufficient to check on Fuchs and the vehicle, LE went back to his cruiser and found out that Fuchs had previously fled from LE, had a conviction for manufacturing meth and was previously armed with a handgun. While this information was being relayed to LE, LE saw Fuchs squirming around in the driver’s seat. When back up arrived soon after, back up started to approach the vehicle. LE was concerned that back up was not privy to the handgun history so intercepted back up and detained Fuchs in handcuffs. Fuchs was Terry frisked. Fuchs claimed the car belonged to his girlfriend’s ex-boyfriend but could not be sure the car wasn’t stolen. When asked if there was anything illegal in the car, Fuchs said there might be a blunt or half a joint or something. Fuchs’ car was blocking the entry of a semi truck delivering to the nearby businesses, so LE moved the car. He rolled up the windows to keep the odor inside and make it easier for his K9 to locate the source. K9 alerted to the vehicle. A search revealed contraband.

Fuchs argued that LE lacked reasonable suspicion to initiate a traffic stop, exceeded the scope of the stop by handcuffing him, unreasonably searched Fuchs’s vehicle when he moved it, and relied on K9’s unreliable alert to search the car. The government disagreed and added that, in any event, the narcotics inevitably would have been found during an inventory search of the car after it was towed.

The appellate court noted that LE did not tell Fuchs about the smell of marijuana or note it in his report or testify about it at an earlier hearing. However, at this stage of the case (appeal after conviction), Fuchs needed to prove that LE was so unbelievable that it was clear error to believe him and the motion to suppress should have been granted. The court held that the traffic stop was valid and that there was no error in denying the motion to suppress.

In addition, given Fuchs’s demeanor, behavior, and alleged firearm possession, LE reasonably feared for his and back up’s safety, and therefore the detention in handcuffs and the Terry frisk were lawful. The court also held that the smell of marijuana was detected on first contact with Fuchs which provided probable cause for search. Therefore, the decision to move the vehicle and rolling up the window were irrelevant. Therefore, the court did not address the reliability of the K9 or the inevitable discovery rule.

Note: Tennessee has not legalized marijuana for any purpose (hemp is now legal but wasn’t then).

Griesmar v. City of Stow (Ohio 2022) 2022 U.S. Dist. LEXIS 12684
Traffic Stop; Prolonged Detention; Violation of Civil Rights; Smell of Marijuana as Probable Cause; Monell Liability

Griesmar was stopped for speeding. LE smelled the faint odor of marijuana while speaking with her. LE returned to his cruiser to begin writing the citation. After serving Griesmar with the citation, he asked for consent to search because of the marijuana smell. Griesmar said she just wanted to go home. LE then detained her to search the car because of the marijuana smell. Griesmar then showed LE a couple of joints in the ashtray.

Griesmar was told to exit her car and LE searched it when back up arrived. LE found contraband.

Griesmar then brought a federal civil rights action claiming that she was unlawfully detained and her property was unlawfully seized as LE did not have probable cause to do either the detention or search.

The appellate court first addressed the stop, holding that LE had reasonable suspicion to pull her over and investigate the speeding LE had observed. The court then addressed the “prolonged detention” when LE asked for consent after serving the citation on Griesmar. The court held that under the federal standard, the smell of marijuana is probable cause to search a vehicle. In addition, prior to the search, Griesmar showed LE some marijuana, further cementing the finding of probable cause supporting the search of the vehicle. Therefore, her arrest was also supported by probable cause based on the smell and sight of marijuana.

Qualified immunity was not reached because LE did not violate Griesmar’s civil rights. In addition, the agency and municipality were not liable under a Monell theory for the same reason; there was no violation of her rights.

Note: Marijuana is still completely illegal under federal law. This case also serves as a good reminder that detentions, even without a K9 sniff, must be based on reasonable suspicion that had not been fully investigated (here the traffic stop was finished but the smell of marijuana had not been fully investigated).

United States v. Goodwill (Illinois 2022) 2022 U.S. App. LEXIS 1844
Traffic Stop; Ordering Occupants Out; Prolonged Detention

Traffic stop for tinted windows. Goodwill, the driver, was asked to sit in the front seat of the squad car while LE started the paperwork and asked questions. A K9 team arrived and alerted on the vehicle before the warning citation was completed. Prior to deployment, Goodwill consented to the sniff.

Goodwill conceded that the stop was valid. However, Goodwill claimed that LE was not allowed to ask him to relocate to the squad car and that LE prolonged the stop by asking non-traffic related questions.

The appellate court first held that LE can ask a driver to sit in the police car for the duration of a traffic stop without any particularized suspicion of dangerousness. See Pennsylvania v. Mimms, a 1977 US Supreme Court case. LE reasonably fear for their safety during traffic stops – a driver can have a hidden weapon and passing traffic endangers a police officer standing close to a major highway – and vehicle occupants are minimally burdened by moving. Therefore, LE lawfully asked Goodwill to move to his squad car while he was completing the written warning. The appellate court also held that a LE’s subjective intent in relocating the driver is irrelevant as long as the request is objectively reasonable and here, it was.

The appellate court then addressed the prolonged detention argument. Goodwill claims that LE lacked a “reasonable justification” for asking him to move to the squad car because LE did so, in part, to dispel “negative views of the police.” Putting aside the fact that LE made the request primarily because of officer safety, “outside the context of inventory search or administrative inspection,” the Supreme Court has rejected the proposition that an “officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.” See Whren v. United States. Because the court found that LE’s request to Goodwill was objectively reasonable, and that LE worked diligently on the citation as he was asking questions, the court did not inquire into his subjective intent.

In addition, the court held that even though LE could have completed the citation in a shorter period of time had LE not asked questions about Goodwill’s children, employment, the ownership of the vehicle, etc. (as well as periodically stopping to spit tobacco into a can), his investigation was continuous until the point of the K9 alert. The court stated, “An officer can ask “wholly unrelated” questions while processing a ticket. The information did return from the databases a few minutes into the stop, but [LE] still needed to transcribe everything from the computer to the ticket itself, which entailed handwriting each input from different computer screens. There is nothing suggesting that simply spitting or looking up while engaged in this process unconstitutionally extends a stop.” Finally, the court held that even though Goodwill consented to the sniff, LE did not need consent as the sniff provided probable cause for the search because the the traffic stop was not impermissibly extended.

Note: There were two officers on scene initially but one took the lead while the other officer was communicating with other officers in the field, including the K9 team. This is the best scenario; two officers allows one to concentrate on the traffic investigation and while the other can be communicating with the K9 team. However, this case also does show that a single officer can request a K9 team while continuing to work on the traffic investigation. The court did say that purposeful delay to get the K9 team on site was not permitted. LE must be objectively and reasonably work on the traffic investigation until there is an alert that that then supplies probable cause for a search.

United States v. King (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 8024
Traffic Stop; Parcel Sniff; Alert as Probable Cause; Reasonable Suspicion

A confidential informant (CI) informed LE that a package containing a pound of methamphetamine was going to be delivered at Brown’s residence. The CI said the package was addressed to Brown’s residence, but the listed recipient was someone who didn’t live with Brown. The CI said that when the package arrived, Brown was supposed to call King who would pick it up.

LE contacted UPS and made arrangements to meet the truck carrying the package. A K9 team was called in. When the K9 team showed up, there were 5 packages on the bumper of the UPS truck. However, this was not a conducive environment for the K9 as there was a lot of wind and the package had been recently moved. The K9 did not alert to any of the packages at that location. LE then talked the driver into relinquishing the package. The K9 did alert to the package back at the barracks. A warrant was sought and granted for the package. However, the affidavit did not disclose the first sniff where the K9 failed to alert. Inside the package was a pound of methamphetamine in a black lock box. The package was repackaged with rock salt and a controlled delivery was planned. The UPS driver put the package on the porch of the address and LE set up surveillance. Several hours later, a Camaro pulled up and went inside. He came out after 10 minutes and drove away. LE then received a call from the CI who told LE that both Brown and King saw the product and then left the residence.

A traffic stop was initiated and King was the driver (Brown was the passenger). Both were arrested and taken to the barracks for questioning. An inventory search was conducted and the box was present in the car but not the rock salt. The search warrant affidavit for the vehicle mistakenly said the rock salt was still in the cardboard box.

The court first addressed the initial seizure of the package at the UPS truck. Brown and King first must show they had a reasonable expectation of privacy in the package (standing) and if so, then LE  would need a reasonable suspicion that the package contained contraband to seize it.

The package was addressed to “Alexandria Salcedo” at the address where Brown lived. Since Brown testified that the package was intended for him and he (Brown) used a false name, the court held that Brown had standing to challenge the seizure of the package, but King did not, since he was not the sender or the intended recipient as King’s identity and/or address was not on the package. The court then went on to determine that LE had reasonable suspicion to seize the package based on the CI’s corroborated information. Therefore, King’s motion to suppress on this point was denied.

The court then held that the omission from the search warrant affidavit of the first sniff results was not done with a reckless disregard for the truth and even if it was, Brown and King could not show that the inclusion of the information would have rendered the search warrant lacking in probable cause. Therefore, Brown’s motion to suppress was denied.

The court then addressed the traffic stop. Here, the court held that after the traffic stop and upon confirmation of the occupants’ IDs, they were arrested. The court held that LE had probable cause to arrest Brown and King based on the information from the informant which was corroborated, the K9 alert on the package as well as the controlled delivery (which was assisted by the informant). Even though the rock salt was not in the package at the time of the arrest, the government only had to prove an attempt to possess with intent to deliver. The court also approved the inventory search of the vehicle because it was impounded for a more thorough search in accordance with the policy of the LE agency.

Note: Pennsylvania is one of a handful of states that adds an element of exigency to the automobile exception. Here, because the search was pursuant to an inventory search (in accordance with the policy of the LE agency), that exigency element was not required to be met. Even though there was a failure to alert at the truck, the court held that the alert at the station was probable cause to issue the search warrant for the car. This is an area in which to be very careful. There are cases out there where a failure to alert has erased the probable cause of a positive alert. Here, the court was not concerned about it, but best practice is to make sure that the environment is appropriate for your K9 to work properly.

People v. Bjorlie (Illinois 2022) 2022 IL App (2d) 200118-U
Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

Bjorlie was pulled over for talking on his cell phone. LE, well acquainted with the odor of marijuana noted the smell of burnt marijuana and Bjorlie was putting cash in the center console, which he claimed he won at a casino. LE then issued a warning citation and asked about the smell of marijuana. Bjorlie admitted to maybe smoking earlier in the day. Bjorlie was put in the back seat of the cruiser while LE searched his car. A large amount of cash, packaging, cell phones and scraper baggies were found. Bjorlie was charged with and convicted of possession with intent to deliver small amounts of several controlled substances.

Bjorlie complained that the stop was prolonged because after the citation was given to him, LE asked questions about marijuana, which had nothing to do with the traffic investigation. Bjorlie also argued that LE prolonged the stop when he asked another officer about how cash won at a casino was handled. The appellate court held that there was no reason to disbelieve that LE smelled marijuana (in fact, Bjorlie did not raise any challenge to that testimony by LE; he also admitted to smoking earlier in the day). Smell alone was enough to create probable cause to search. In addition, asking another officer about casinos to gauge Bjorlie’s truthfulness and asking Bjorlie about the presence of cannabis were clearly within the scope of the cannabis investigation. LE’s inquiry into casino operations, moreover, corroborated his testimony that he formed suspicion unrelated to the traffic violation prior to handing defendant the citation. Therefore, the trial court’s denial of the motion to suppress was correct.

Note: This prolongation argument was a bit of a stretch by Bjorlie which the court easily swatted down. Goes to show, though, the lengths a defense attorney is willing to go. Also, Illinois only legalized possession of small amounts of marijuana under certain conditions in 2020, after the date of the offense in this case.

United States v. Conner (Alaska 2022) 2022 U.S. Dist. LEXIS 8664
Traffic Stop; Maintaining Training and Deployment Logs; Reliability Foundation

Traffic stop for failing to signal. Connor was the driver and there was a BB gun in the door pocket. Connor did not have a valid driver’s license. Connor was taken out of the car and Terry frisked. Only $113 cash was found on him. LE arrested him for no valid driver’s license, failing to stop (it took him 50 seconds to stop) and violation of conditions of release in another pending criminal case.

Several houses near where Connor stopped were known to LE as drug houses. In addition, texts displayed on Connor’s cell phone indicated that Connor was trafficking in drugs (apparently in plain sight). A K9 team was requested. The K9 alerted to the truck. The vehicle was impounded and a search warrant was issued for it. Inside was $700 in cash, various quantities of various controlled substances, a “drug ledger” (I think they mean pay and owe records), a gun and ammo and two cell phones.

Prior to the motion to suppress, the defense asked the prosecution for “[the K9 team’s] log, training records and score sheets, certification records, and training standards and manuals pertaining to K-9….]” The prosecution made the request but was unsuccessful in obtaining such records from LE. The court issued a subpoena for the same records but only the latest certification was sent by LE. When asked, the agency said, “After Florida v. Harris, [agency] only held records for dogs through the certification year. In this case it appears that K9 was certified for two months and thus two months of records were provided. Prior to Harris we would list and count every training search on the K9 affidavit through the dogs [sic] career. Again, we stopped doing this as a program and only hold records now from certification to certification.” At the hearing, LE testified that the agency was in possession of the previous certification and training records which the court held were withheld in violation of the court’s subpoena. Connor asked the court to dismiss the charges against him or in the alternative, suppress any testimony by handler and all evidence related to the K9.

The appellate court first addressed the traffic stop. It concluded that the charge of failure to stop was not proven even by the statement of LE which appeared exaggerated. In addition, LE’s statement in his report does not align with his statements in the search warrant and that affected the veracity of LE. The court held the Government had not carried its burden of showing that LE had reasonable suspicion to conduct the stop. Absent reasonable suspicion, Conner’s Fourth Amendment rights were violated. The evidence discovered in Conner’s truck was the fruit of an unlawful search and seizure and therefore suppressed.

The court then addressed the sanctions available for the violation of the court’s subpoena. A sergeant represented that the agency “no longer held” complete K9 training records pursuant to a 2013 Supreme Court decision (Harris). It appeared to the court from the record that no effort was made to contact handler—the individual most likely to be, and indeed in possession of responsive records—despite being called to testify as a witness during the evidentiary hearing. It also became clear at the hearing that the handler was less than diligent in maintaining on-going training with the K9; he did not meet the minimum number of hours and criteria set forth by the agency’s requirements for proper maintenance training.

Sergeant’s response for why additional records were not produced gave rise to more questions. Sergeant stated that K9 records are only held by agency “through the certification year,” and because this K9 was certified for two months in 2019, only the certifications from May 19, 2019-June 14, 2019, were disclosed to defense counsel. The drug detection dog sniff of Mr. Conner’s vehicle was conducted on June 14, 2019; however, the subpoena was not issued and answered until April 2021. If the policy articulated by Sergeant was true, i.e., that the agency only retains K9 records on a yearly basis, the agency would not have held on to any K9 records from two years prior, much less exactly one month of certifications leading up to the precise date of the search of Conner’s vehicle. The court determined that, at best, agency was grossly negligent in taking steps to properly investigate and respond to the subpoena; at worst, deceptive. Regardless, the agency plainly violated several unambiguous orders from the Court to comply with the subpoena.

The Court therefore found that the agency’s willful disobedience in turning over relevant evidence pursuant to a subpoena violated Conner’s due process rights. In addition, it appeared to the court that the government could not have shown a proper reliability foundation for the K9 (due to failure of maintaining training levels), which would have jeopardized or suppressed the evidence of the K9 sniff and subsequent search.

The court denied the motion to dismiss the charges, but granted to motion to suppress re: the K9 sniff and subsequent search.

Note: This is a disappointing result that could have easily been addressed if administration understood what documentation was necessary to maintain and turn over to the defense in case of litigation of a K9 sniff. Not only was administration’s response tone deaf (and its analysis of Florida v. Harris flat out wrong), it also wasn’t true. Apparently, the handler maintained the appropriate records. The second disappointing thing is that the records showed there was a failure to adequately maintain training, which is not only a failure of the handler, but of the K9 team’s supervisors and policy makers. So the court was able to toss the K9 sniff and subsequent search on two theories: 1) agency willfully violated a court order to turn over the documentation and 2) the documentation that was discovered during the handler’s testimony showed that there was inadequate foundation to support that the K9 was reliable. This agency and its K9 unit need to get on the same page and to maintain records for the working life of the K9 and to maintain training levels monthly or they will find themselves in a situation that their K9s are worthless.

United States v. Reyes (Massachusetts 2022) 2022 U.S. App. LEXIS 1417
Traffic Stop; Prolonged Detention; Consent

Reyes was the subject of a drug trafficking investigation where the involved parties were using USPS to mail controlled substances. The packages were suspicious; cash was used to mail them, fictitious senders, slightly incorrect address for recipients; labels in the same handwriting but listing different senders. Reyes was identified as the “runner” in the conspiracy. Seven packages were identified as being part of the conspiracy and five were chosen for controlled delivery. After the last controlled delivery was picked up by Reyes, LE stopped him for speeding. Reyes was not told about the drug investigation. When asked, he could only say his destination was Boston. Reyes acknowledged that he had a federal narcotics conviction. LE knew he had firearm and assault convictions. Reyes was extremely nervous and a package label from one of the controlled buys was in plain sight. Reyes consented to a search of his vehicle. A K9 was called in, Reyes was removed from his car and placed in a cruiser (handcuffed) and during the sniff, LE opened the trunk of the car and the K9 jumped in and alerted to a box picturing a toy. When Reyes could not explain why he had such a toy, LE picked it up and determined it was heavier that it should have been. Inside was a kilogram of cocaine.

Reyes challenged the length of the traffic stop. The court first held that the traffic stop was valid. The court then held that given the on-going drug trafficking investigation, as well as observations during the traffic stop and investigation, LE had sufficient reasonable suspicion to further investigate by detaining Reyes and calling for a K9 team. That legal detention led to a valid consent.

Note: There were more issues in this appeal but they are not relevant for purposes of this update. While this was a Rodriguez prolonged detention issue, the court only went so far as to find that Reyes was properly detained at the time of his consent to search. That the consent for a search could include a K9 sniff was not challenged or addressed. However, best practice is to get consent specifically for the K9 sniff. Here, since the court did find that there was reasonable suspicion to expand the traffic investigation into a drug trafficking investigation, no consent was needed, but it did give LE another avenue of admissibility and that is always good.

United States v. Brown (Tennessee 2021) 2021 U.S. Dist. LEXIS 250888
Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

Traffic stop for following too closely and speeding. Brown, the driver, did not immediately put his car in park, instead leaning across the front seat and moving around. Upon approach, LE smelled the odor of raw marijuana. LE asked for appropriate documentation and then told Brown that he was going to issue a warning citation and directed Brown out of his vehicle to ask him questions in furtherance of his investigation. LE Terry frisked Brown who did not find any weapons. During questioning, LE texted for back up. Brown admitted to having a previous firearm conviction. Four minutes in, LE told Brown his car reeked of weed. Brown denied having marijuana. LE asked if a K9 would alert on the vehicle. Brown started to deflect the questioning and never actually answered. About 12 minutes into the stop, back up arrived and attempted a second Terry frisk of Brown, who was uncooperative and was taken to the ground. He was in possession of some narcotics. The vehicle was searched after the back up LE confirmed the smell of marijuana. Controlled substances were found (including a baggie of marijuana in the trunk).

The appellate court first found that LE pulled Brown over lawfully for the observed traffic violations. The court then held that the smell of marijuana was sufficient probable cause to search the vehicle (however, LE would not have been able to search the vehicle solely on the basis that Brown resisted arrest due to Arizona v. Gant – Brown was no longer within reaching distance of the interior of the car and there was no reason to believe that evidence or contraband relevant to the charge of resisting arrest would be in the passenger compartment of the car).

The court went on to hold that before the traffic stop was completed—indeed, as it began—LE had probable cause to search the vehicle based upon the odor of marijuana from inside the car. At that time, LE had reasonable suspicion to detain Brown while investigating a possible drug crime. Although no longer restricted to the time necessary to complete the traffic stop, LE’s investigatory detention of Brown while investigating whether he possessed illegal drugs had to be reasonable in duration and scope. The court then addressed the nine minutes that Brown was in the cruiser waiting for the arrival of back up. LE testified that Brown delayed putting the vehicle in park, after he was stopped, and moved around inside the car more than usual, before finally putting the vehicle in park. This unusual activity caught LE’s attention. After smelling the strong odor of marijuana, LE determined to detain Brown in his patrol car until another officer arrived and while further investigating the presence of drugs in the car. During the time in the patrol car and after confronted with LE’s detection of the odor of marijuana, Brown became increasingly agitated. The Court found that LE’s detaining Brown in the front passenger seat of his patrol car was reasonable under these circumstances and was not prolonged.

Note: There was also a Miranda argument that is not relevant to the purpose of this update. Tennessee has not legalized marijuana for any purpose at the time of the offense.  (Hemp is now legal in certain circumstances).

State v. Thompson (Arizona 2022) 2022 Ariz. LEXIS 37
Traffic Stop; Consent; Cueing

This case was a double murder and arson investigation. Thompson was stopped for traffic violations (at that time, he was not a suspect for the murders). Thompson was very nervous and argumentative. LE, a handler, issued a warning and told Thompson he was free to go. However, as Thompson was turning to go back to his car, LE asked if he could ask additional questions and Thompson consented. Thompson denied consent to search the interior but consented to a sniff by a drug detection K9. The K9 alerted to the vehicle. During the search, Thompson repeatedly asked for a specific water bottle from his backpack. LE looked inside the backpack and did not see a water bottle, but did find a gun and a hatchet covered in bright red blood and what appeared to be a long human hair stuck to the blade. A complete search of the car later yielded a trove of evidence linking Thompson to the murders. LE contacted dispatch to determine if there had been a homicide in the area and was informed of the murders and house fire. Thompson was arrested.

The appellate court first found that Thompson had waived any argument over the propriety of the traffic stop by not challenging it prior to or during the trial. Thompson claimed that his consent was not valid, but the court found that LE’s testimony on Thompson’s consent credible on this point. Thompson then argued that the K9 alert was not sufficient for probable cause and pointed to his trial expert who testified that the K9 was not adequately trained, claiming that the handler’s increase in heartrate and breathing “cued” the K9 to alert to Thompson’s car, even those these claimed changes were not visible in the video. Two experts for the government testified that the K9 was adequately trained and alerted properly with no cueing. The court accepted the government’s experts’ testimony and disregarded the defense expert. Thompson’s final argument regarding the K9 was that a question by his attorney to his expert was not allowed to be answered. After the defense expert testified that dogs pick up odor on the downwind side of a vehicle, defense counsel twice asked where K9 should have alerted based on the wind conditions on the day of the stop if drugs had been in Thompson’s car. The trial court sustained the government’s foundation objection, reasoning that because expert was not present at the stop and “[w]e do not have any conclusion about wind direction, wind speed, et cetera,” expert’s opinion would lack foundation (not enough facts were introduced for the expert to base his opinion on).

Note: This was a death penalty case, so the stakes were high on both sides. However, that doesn’t stop defense attorneys from advancing some really incredible arguments, including that the handler’s breathing and heartrate cued the K9 to alert. That’s just out there. The government addressed it with two experts of their own which was good in that it gave the court reason to determine that the defense expert was not credible. This case also serves to remind us that you never know what you’re going to find when you search a vehicle. By all accounts, it appears that the handler stopped a vehicle for violations without knowing that Thompson had just committed a double murder and arson. Handler fortunately was able to get consent to a K9 sniff. This is good reminder that 1) you never know what a crook is up to and 2) multiple avenues of admissibility are good.

Huipio v. City of San Jose (California 2022) 2022 U.S. Dist. LEXIS 11493
Excessive Force; Monell Liability

This case started out as a response to a domestic violence incident and ended with a K9 biting Huipio after a several hour standoff. Entry into the house was made after K9 announcements, but no one was there. LE then concentrated on the sheds that were on the property (unclear if additional announcements were made or needed). Huipio was found in one of the sheds, lying down on the floor with empty arms extended in submissive posture (Huipio’s version of the facts, which is what the court is allowed to consider at this stage). K9 was then directed by its handler to bite Huipio. As K9 maintained his bite, handler dragged Huipio out of the shed.

The appellate court held that the case can go forward on this excessive force charge as pleaded against the handler. In addition, the court found insufficient the facts plead by Huipio to support a Monell claim against the agency. Huipio failed to allege the substance of the City’s alleged policy regarding the use of police dogs and failed to show how an allegedly deficient policy or other action of the City caused the constitutional injury Huipio alleges. Moreover, Huipio did not establish any correlation between the alleged former incident involving an attack by a police dog on a child and the City’s alleged policy, or any correlation between that incident and the incident involving Huipio. Similarly, the Complaint’s allegations regarding the City’s alleged practice and custom surrounding the use of police dogs lacked sufficient factual detail. The allegations regarding the City’s alleged failure to train and supervise officers were also conclusory and lacked necessary factual content, and they also lacked any link between the alleged failure to train or supervise and any action taken by the City.

Note: While the handler is still facing excessive force claims (based solely on Huipio’s version of the facts), the court did not find liability on the part of the agency (the City). There is a good discussion on Monell liability in this case.

United States v. Davis (West Virginia 2022) 2022 U.S. App. LEXIS 688 (Unpub.)
Traffic Stop; Odor of Marijuana as Probable Cause

The facts in this case are not recited, but the opinion indicates that prior to pulling Davis over, LE checked three different states to determine if Davis was properly licensed and concluded, wrongly, that Davis did not have a valid license. The court concluded that even though it turned out that Davis was properly licensed, LE made a reasonable mistake of fact, which is allowed and does not negate the validity of the stop.

Then Davis contended that the stop became illegal because when LE noticed the aroma of marijuana, the traffic stop turned to the possible presence of illegal drugs, without LE first determining whether the driver had a proper driver’s license. The appellate court dismissed this argument as well. As soon as LE on scene smelled marijuana, they “possessed probable cause to search the vehicle, and they were entitled to order [Davis] out of the vehicle while their search was accomplished.” There is no Fourth Amendment requirement that officers first complete the original purposes of a traffic stop when new circumstances arise that provide the officers with reasonable suspicion that other criminal activity is afoot.

Note: This was the only common sense result available. West Virginia only allows for medical use but they have not yet set up their medical marijuana program.

United States v. Balkissoon (New York 2022) 2022 U.S. Dist. LEXIS 4635
Odor of Marijuana as Probable Cause; Plain View; Search Incident to Arrest

LE found Balkissoon’s Mercedes blocking a crosswalk. One LE vehicle pulled up parallel to the Mercedes and LE saw Balkissoon just about to roll a joint. LE also could smell marijuana. (At this time, New York had defined marijuana possession as a civil violation (decriminalized)). LE parked their vehicles and approached. At this point, other LE smelled marijuana and could see in plain sight a small bag of marijuana and a cup of ashes. LE told Balkissoon they could smell marijuana and Balkissoon held up the baggie of marijuana and said that was all he had. Balkissoon was asked to exit the Mercedes and LE engaged him in conversation. Other LE searched the front of the Mercedes. LE had learned that Balkissoon had a prior firearms offense and Balkissoon looked nervous and kept looking at the LE searching his car.

Within arm’s reach of the driver, a backpack was on the back seat. It was unzipped and LE examined it. LE removed a bottle of Febreze and noticed the butt of a gun. LE announced this and Balkissoon took off running. He was quickly apprehended. The backpack also contained a scale and rolling paper.

The court identified the heart of the parties’ dispute as the following question: having smelled marijuana and seen the rolling papers in Balkissoon’s lap, the small bag of marijuana in the center console, and the plastic cup with ashes, did LE have probable cause to believe that additional drugs or paraphernalia would be present? The court first found that the contact by LE was reasonably supported by the observation of Balkissoon blocking a crosswalk.

The court stated that marijuana use generally involves more than marijuana and its container: things like the rolling papers and the scale found in the Balkissoon’s backpack, for example. And it leaves additional traces like the ashes in the cup, the bag of stems recovered, and the additional piece of fronto leaf (a large tobacco leaf that is used to roll a marijuana cigarette) discovered during the later inventory search at the precinct. Therefore, based on cases within this Circuit, the court held that LE did not have to stop when they found a source of the marijuana smell; they could continue the search until all areas of the vehicle were searched that could contain marijuana or evidence of its use.

In addition, the court held that a search incident to arrest supported the search of the backpack. It was reasonable for LE to believe that evidence relevant to the crime of arrest — more marijuana or paraphernalia — would be found.

Note: This holding is in contrast to other jurisdictions discussed in previous updates. Here, the court held that once LE finds a controlled substance, you get to keep looking as it is reasonable to believe that there will be additional contraband and/or evidence. Contrast that with Colorado’s position (for example) that once you find a source of the marijuana smell, LE must end its search unless there are other indicators that demonstrate probable cause of an additional crime. New York legalized marijuana after the facts in this case so at the time, marijuana was still illegal.

United States v. Keith (Georgia 2021) 2021 U.S. Dist. LEXIS 249938
Traffic Stop; Prolonged Detention

Traffic stop for defective brake light. Keith was the front seat passenger and the back seat passengers were an adult and two children. After gathering the appropriate documents from the driver and ID from Keith, LE went back to his car to perform a cursory records check which did not inform LE that Keith was a felon. It , however, did identify him as a gang member. After discussions, LE asked driver for consent to search, which was declined. LE admitted at that point he lacked probable cause and that he wanted to investigate other crimes because the driver was nervous and was smoking. LE decided to start writing tickets and instructed an on-site trainee to start to do that. During discussions of whether to write a citation or a warning, a K9 team arrived and alerted on the vehicle. LE then ordered all passengers out and Terry frisked them. Under Keith’s seat was a gun. The trainee needed additional assistance in writing the warning and his questions were interspersed with LE requesting more information and speaking to Keith about the gun.

Keith argues LE prolonged the traffic stop for approximately fifty seconds when he asked driver for consent to search her car and informed the other officers of her declination. The Court agrees. Before asking for consent to search, LE conferred with each other and determined there was a basis for charging driver with a broken brake light and unrestrained children. When there was a question as to how to proceed, there was no answer as LE returned to the vehicle and asked driver for consent, which she declined. Only upon announcing the declination did LE announce his decision to issue a warning for the brake light, at which point the officers resumed the process of wrapping up the traffic stop while the dog sniff was conducted.

The court held that during this fifty-second interlude, no officer was “engaged in procedures reasonably necessary for the completion of [the stop’s] purpose – issuing a citation.” Accordingly, the stop became unreasonable in scope and duration when LE detoured from the original purpose to ask for consent so that he could investigate other potential crimes.

Note: The court did say that the 42 seconds used to confer regarding their records checks and observations before LE asked for consent to search was permissible. Nor was there any issue with a trainee having to request a second records check as this was for the sole purpose of reducing rather than prolonging the time needed to write the warning ticket, and this task was directly related to the mission of the traffic stop. Those are good rulings. The take away is that, especially when you have other LE on scene that can take over the traffic investigation, get the sniff accomplished during the traffic investigation while LE works on the traffic investigation diligently. Here, LE put the cart before the horse without any explanation as to concern of drug activity other than nervousness. This situation could have been handled better and a felon with a gun would be going back to prison. Instead, he walked.

Leib v. State (Iowa 2022) 2022 Iowa App. LEXIS 19 (Unpub.)
Traffic Stop; Reliability Foundation

Traffic stop for traffic and equipment violations. Leib was the passenger. A K9 was deployed and alerted to the vehicle. Leib was removed from the car and Terry frisked. He was in possession of 3 baggies of methamphetamine. He was convicted of possession of methamphetamine with intent to deliver.

In this collateral appeal after conviction, Leib complained that his lawyer was ineffective by failing to bring a motion to suppress and failing to obtain K9’s records, claiming that K9 was mot sufficiently trained and reliable as the records failed to demonstrate what type of behavior K9 was trained to display during an alert/final indication, a description of the location of any narcotic “hide” used during training, the weight of the narcotic used in training, and whether the training officer was aware of the location of the “hide.”

The court held that once the government introduces evidence that the K9 is trained and reliable via certification and/or training records, the burden shifts to the defense to show that the K9 unreliable in the face of those records. Here, the court held, K9 was a certified K9 officer and thus is presumed reliable. Leib presented no evidence to rebut that presumption, and, therefore, counsel had no duty to file a meritless motion to suppress.

Note: This is a petition for post conviction release so the law favors the government in a hearing like this. Here, Lieb had to show that there were genuine issues of material fact and he was not able to do so. Take away is to make sure that at the trial level, your K9’s certification and/or training records are introduced into the record to survive any challenge on appeal.

Gubari v. Commonwealth (Virginia 2022) 2022 Va. App. LEXIS 4 (Unpub.)
Traffic Stop; Reasonable Suspicion; Prolonged Detention

Traffic stop for window tint. LE radioed for back up and noted that the vehicle was slow to stop. As LE approached, he could not see through the tint so knocked on the back passenger door and driver rolled the window down. LE noted luggage in the back. Both driver and passenger were very nervous, breathing heavily and pulses pounding in their necks.

LE learned that driver did not have a valid driver’s license. He claimed he was driving because the passenger, Gubari, was tired. He had an odd story about their travel. A K9 team arrived four minutes into the stop and the window tint was checked and found to be in violation. Gubari was asked for his license and he gave a different story than driver (even though they were cousins) about their travels. At that point, LE saw what LE believed to be, based on training and experience, khat, a section 1 narcotic used as a stimulant to stay awake during long drives. Gubari’s license came back as invalid as well. At that point, LE knew they were not going to allow these two to drive away. The vehicle was a rental for the last six months which was very expensive. LE also knew that rental car companies did not tint their windows, but criminals do in order to conceal contraband from LE.

LE then returned the documents to driver and Gubari and told them they were only getting a verbal warning. Out of the hearing of Gubari, LE told driver that he was free to go and asked driver for consent to search. Driver said ask Gubari since he rented the car. LE then instructed the K9 team to sniff the vehicle. The K9 alerted on the car. A search of the car revealed thousands of cigarettes without a Virginia tax stamp (contraband).

Gubari complained that once driver was told they were free to go, the traffic investigation had concluded and the sniff by the K9 was after that point. The court defined the question then, as whether LE had reasonable suspicion to expand the investigation into additional crimes.

The court held that here, the evidence, viewed objectively, provided LE with independent reasonable suspicion to justify continuing the detention of Gubari and his rental vehicle to investigate whether he possessed the controlled substance khat or was using the vehicle to traffic contraband. LE’s initial basis for stopping the vehicle was his suspicion that it was in violation of window tint laws. Additionally, however, he knew that criminals often equip vehicles with illegal window tint to conceal contraband from law enforcement. LE noted that when he activated his emergency lights to initiate the traffic stop, the car was slow to pull over, and when he first approached the car on foot, the driver was “nervous” and had “a scared look on his face.” Gubari and the driver were breathing heavily, and “the pulse in . . . their necks” was “visible” and “rapid[].” During the course of the stop, LE saw on the center console what he suspected was khat, an illegal narcotic. He knew that traffickers sometimes use khat to remain awake while driving long distances. When he asked Gubari about the obvious plant material, Gubari physically brushed it aside, picked up a miniscule amount of some other substance, and gave an evasive response regarding cookie crumbs. LE also confirmed during the stop that the degree of window tint exceeded the legal level. This combined with the lack of valid driver’s licenses, the conflicting stories about their travels, the car being a rental for the last 6 months, and that Gubari installed the tint and not the rental car company all combined to give LE additional reasonable suspicion of drug or trafficking crimes. Therefore, the extension of the traffic stop for the K9 sniff was lawful.

Note: There were other theories of admissibility advanced by the government but the court held they need not address them because they decided that reasonable suspicion existed that extended the investigation such that the K9 sniff could be performed. This case though is a good reminder that if there are more LE on scene than just the handler, nothing is preventing the handler from deploying the K9 for a sniff while the traffic investigation is ongoing.

People v. Gamboa-Jimenez (Colorado 2022) 2022 Colo. App. LEXIS 72
Traffic Stop; Sniff as Probable Cause; K9 Entry into Vehicle; Reasonable Suspicion; Reliability Foundation (!?)

Traffic stop of a car in which Gamboa-Jiminez was a passenger. Prior to being pulled over and after the driver saw LE, driver was driving 5 mph under the speed limit. The passenger compartment was strewn with clothes and discarded food wrappers. There was an overwhelming scent of air freshener coming from the car. LE obtained driver’s license and documents on the car from the glove box by Gamboa-Jimenez. The vehicle was from Virginia and, according to the driver, belonged to one of Gamboa-Jimenez’s friends. Based on the documentation, LE was able to determine that the car had been driven 30,000 miles in the last year, an excessive amount. LE also noted 4 cell phones in the car. LE told occupants that he was going to give them a warning if all checked out. LE called for back up and then started running the information obtained from the occupants.

When LE returned, the information having not raised any red flags, he gave the men a verbal warning. LE then handed back the driver’s license and asked a question regarding why drive a long trip when the flight would be cheaper, taking into consideration the fuel, lodging and food a vehicle trip would require? Driver said they had not gotten any hotels. LE told them they were good to go and turned to walk a few steps toward his cruiser, then turned around and asked if they would answer some more questions. Driver consented and in response to questions, denied possessing contraband and that LE could not search the car. LE then ordered occupants out and had the K9 (who arrived after the request for back up) sniff the vehicle. Occupants left the doors open on the vehicle. The K9 alerted and then jumped in the vehicle. K9 performed his final indication in the car. A kilogram of cocaine was found in a compartment.

LE testified the following were indicators of drug trafficking: the scrupulous obedience of traffic laws after law enforcement is observed, the smell of “masking odors” such as air fresheners, unusual travel plans, the use of a vehicle owned by or registered to a third party, travel from west to east across the United States along interstate highways, putting high mileage on a car in a short period of time, having multiple cell phones, and possessing religious iconography. These indicators were present at the stop involving Gamboa-Jiminez.

Gamboa-Jiminez complained that his motion to suppress should have been granted. The court held that LE had articulated numerous reasons to suspect that drug trafficking was going on. The totality of these observations and the training and experience of LE were enough for the court to find additional reasonable suspicion such that there was no unlawful prolongation. Gamboa-Jiminez then objected to the K9’s entry into the vehicle. The court held that since there were alert behaviors prior to entry into the vehicle, there was sufficient probable cause for the K9 to enter the vehicle. Gamboa-Jiminez finally complained that the K9 was not a reliable drug detector, but the handler testified that the K9 had been certified and the team had undergone extensive training and testing and the court found reliability based on that testimony. In addition, this was not challenged in the lower court so Gamboa-Jiminez failed to preserve the issue for appeal.

Note: This is Colorado so things are a bit different here. First, this K9 was not trained on marijuana so that was not an issue. Second, although the denial of the motion to suppress was affirmed, the fact that LE testified to all the indicators of drug trafficking he noted in the trial, that was error because the jury was misled into thinking that Gamboa-Jiminez was a drug trafficker (!? Isn’t that what a prosecutor in a jury trial is supposed to do?) So the appellate court reversed the conviction. This makes no sense to me, but it’s not really relevant to our purposes here. Just another odd result from Colorado.

United States v. McNeil (North Carolina 2022) 2022 U.S. App. LEXIS 1082 (Unpub.)
Traffic Stop; Prolonged Detention

Traffic stop for speeding, heavy braking when driver noticed LE and an expired registration tag. McNeil was the passenger. The court held that the 11 minutes it took for LE to gather documents and complete his investigation was reasonable. Questioning of both occupants about their personal backgrounds and travel plans was reasonably related to the traffic investigation. During that questioning, both occupants had conflicting stories regarding the length of their visit to New Jersey and how long they had known each other; McNeil was breathing heavily, his carotid artery was pulsating, and was continuing to stare at his phone when approached by LE, which was abnormal and appeared evasive; driver’s increasing nervousness, including his hand shaking when providing his license and beginning to sweat when LE asked for consent to search the vehicle; driver’s pinpoint pupils and fresh track marks on both arms, indicating recent drug use; both occupants’ known involvement in narcotics trafficking that was the subject of an ongoing investigation; and McNeil’s criminal history involving drugs. The court held these factors were enough, based on the totality of the circumstances, to raise a reasonable suspicion to extend the vehicle stop to include the K9 sniff.

Note: The specific facts of when the K9 team arrived and when the sniff was performed were not cited in the opinion. However, the court did list the factors that gave LE reasonable suspicion to extend the traffic investigation to include a K9 sniff. This was a case in which McNeil was convicted of providing a controlled substance that resulted in a death, so the appellate court’s standards in examining the records is to make sure there was sufficient evidence, which is a standard that favors the government’s position (since it is post conviction). 

United States v. Sykes (Illinois 2022) 2022 U.S. Dist. LEXIS 978
Traffic Stop; Prolonged Detention

Sykes was stopped by LE for traffic violations. When LE approached, LE realized this was a person who had previous drug and weapon arrests. There was a female in the passenger seat whom LE recognized as well.

Both occupants gave their ID to LE and passenger gave LE proof of insurance, saying the car belonged to her mother. LE gave the insurance paperwork back but kept both IDs. LE went back to his cruiser to run the IDs and called for a K9 as well. LE then waited several minutes waiting for the computer program to return with the information he requested. He was apparently having printer problems but ultimately printed two tickets; one for equipment violation and one for a traffic violation. These tickets began printing 4 minutes and 17 seconds after LE called for a K9 unit. In total, it took LE 5 minutes, 42 seconds to process one copy of the first citation. As LE was ripping the copy off the printer, the K9 team arrived and LE took time to bring the handler up to speed and then to get the occupants out of the car. Occupants were Terry frisked and told that a K9 sniff was happening and the car would not be searched unless the K9 alerted. 35 seconds into the sniff, the K9 alerted to the car. Both individuals were searched and LE found nothing. LE then searched the car and found scraper baggies of marijuana. LE also found a loaded pistol in a bag belonging to Sykes. While LE was attempting to handcuff him, Sykes fled. He was caught and taken to the station. The second citation was completed later at the station.

Sykes filed a motion to suppress, claiming that LE lacked any reasonable suspicion of criminal drug activity and, thus, unconstitutionally prolonged the traffic stop for the purpose of conducting the drug sniff. The government conceded that LE lacked reasonable suspicion to conduct a drug sniff, but argued that it did not unnecessarily prolong the traffic stop.

The court first addressed the time period leading up to the printing of the first citation in the cruiser. Since LE called for a K9 during the processing of the information, and LE diligently pursued the investigation with equipment that was malfunctioning (this caused delay but it was not unreasonable), there was no prolongation of the traffic stop.

The court then addressed the time period from when the K9 arrived to the alert by the K9. LE testified that the printer prints two copies of the citation, one for the offender and one for the agency. The K9 team arrived after the first copy printed. Rather than continuing his tasks related to the traffic stop, LE got out of his car and accompanied handler to the car, at which point LE instructed the occupants to get out of the car so that handler could perform the K9 stiff. LE did this because he knew that handler usually insisted that a car be free of any occupants during a K9 sniff. Based on this record, the Court found that the sole reason that LE stopped processing the traffic citations, got out of his car, approached the car, and ordered occupants to exit the vehicle was to support and facilitate handler’s mission to conduct the K9 sniff . It also follows that LE’s subsequent frisk of occupants also was in support of the K9 sniff, because the frisk was made necessary only by the fact that occupants were no longer inside of their car. Because these actions detoured from the mission of the original traffic stop and unnecessarily prolonged the stop, the court held that the stop was prolonged and since LE had not developed additional reasonable suspicion of drug crimes, the prolongation for the K9 sniff was unreasonable.

Note: The court went on to address the issue raised by the government that, even if LE had stayed in his car to finish the citations, it would have taken longer than the K9 sniff. The court didn’t buy this because 1) that’s not what actually happened and 2) the removal of the occupants was necessary to perform the sniff (based on the record here) and that would have also delayed the traffic investigation. If the handler was able to remove the occupants himself, confirm the occupants were unarmed and then deployed the K9 while LE continued to work on his citations, this would have been fine. However, because LE “abandoned” his citations to assist the K9 team, this was an impermissible delay. Seems pretty petty, but this is the standard we’re working with.

State v. Arroyo (Georgia 2022) 2022 Ga. App. LEXIS 1
Sniff of Apartment Curtilage

LE received a tip from a confidential informant that the informant had seen several kilos of cocaine inside Arroyo’s apartment. LE and a K9 team arrived at the apartment complex. The complex had a gate that was open during business hours and was locked otherwise. LE could not recall whether they had to do anything to get into the complex but they bypassed the leasing office because they did not want Arroyo tipped off to their presence. LE acknowledged that as unauthorized visitors, if they were asked to leave, they would have to do so.

LE went to the apartment which was in an open-air corridor inside the building. The handler deployed his K9 on a leash and had the K9 sniff along the corridor. At the front of Arroyo’s apartment, the K9 laid down which was a final indication. LE knocked and detained the occupants while they obtained a search warrant. Cocaine was found.

The trial court held that the sniff took place within the curtilage of the apartment. The government appealed, arguing that the area sniffed was not the curtilage of the apartment but the open air corridor next to the apartment curtilage. The appellate court was not willing to split hairs that finely. US v. Dunn governs whether curtilage has been violated with a 4 part test: [1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by. Here, the open air hallway met this test. The sniff was right outside the door of the apartment and there was some attempt via the locked gate to control who came and went through it to gain access to the apartments and to limit the uses to which the area is put. Therefore, the suppression of the evidence was affirmed.

Note: This was too close for the court’s comfort. The previous existing cases talked about the seam of the apartment door, so LE in this case had the K9 sniff the corridor. The court was not willing to go that far, given the semi-private nature of the “open-air” corridor.