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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 2023 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are final. Sometimes a court will delay in finalizing a case and that causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.
As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.
Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.
(Disclaimer: I do not represent any individuals, handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)
MARIJUANA UPDATE FROM JANUARY 2023 FOR FEBRUARY 2023 UPDATE
The U.S. Virgin Islands Senate has voted to legalize adult recreational cannabis use, sending a bill that would establish a framework for issuing licenses and regulating the recreational market to Gov. Albert Bryan Jr.’s desk.
Efforts to legalize cannabis for adult recreational use via the ballot process in Oklahoma and Ohio stalled out in 2022, due to lawsuits and other legal entanglements, but activists are eyeing a redo in the coming year.
The Ohio Secretary of State has sent an activist-backed recreational cannabis initiative to the state Legislature, leaving lawmakers four months to vote on the proposed legalization bill or send it back to activists to gather a new round of signatures to qualify for the ballot.
The first week of 2023 saw state lawmakers in Minnesota, Indiana, Kentucky, Nebraska, and Texas pitch bills to legalize cannabis. This website will continue to track these bills as they advance.
INDEX OF CASES REVIEWED FROM JANUARY 2023 FOR FEBRUARY 2023 UPDATE
United States v. Navarrete-Rivera (8th Cir. Minnesota 2023) 2023 U.S. Dist. LEXIS 3961 – Alert as Probable Cause; Curtilage (Sniff at Apartment Door); Good Faith Exception (Leon)
State v. Wilson (Ohio 2023) 2023-Ohio-135 – Traffic Stop; Prolonged Detention
Heaster v. State (Indiana 2023) 2023 Ind. App. Unpub. LEXIS 32 – Curtilage; Alert as Probable Cause
State v. Mayo (Ohio 2023) 2023-Ohio-124 – Traffic Stop; Alert as Probable Cause; Reliability Foundation
State v. Arrieta (Iowa 2023) 2023 Iowa App. LEXIS 29 (Unpub.) – Traffic Stop; Prolonged Detention; Search Prior to Alert; Reliability Foundation; Cueing
United States v. Stanger (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 14754 – Traffic Stop; Prolonged Detention
Pettaway v. Barber (Alabama 2023) 2023 U.S. Dist. LEXIS 15940 – Unlawful Search/Seizure; Excessive Force; Monell Claim
Serna v. Holbrook (California 2023) 2023 U.S. Dist. LEXIS 5243 – Coercion Using a K9
United States v. Simmons (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 5401 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause
Trexler v. City of Belvidere (Illinois 2023) 2023 U.S. Dist. LEXIS 12662 – Excessive Force; Monell Claim; Use of Force Experts
Womic v. Cortez (North Carolina 2023) 2023 U.S. Dist. LEXIS 11213 – Corrections Use of K9; Excessive Force; Qualified Immunity
State v. Crane (Ohio 2023) 2023-Ohio-188 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause
Poulin v. Bush (Florida 2023) 2023 U.S. Dist. LEXIS 6889 – Excessive Force; Qualified Immunity
Dastinot v. Watkins (Maine 2023) 2023 U.S. Dist. LEXIS 2269 – Excessive Force; K9 Warnings; Qualified Immunity
United States v. Bigbee (Minnesota 2023) 2023 U.S. Dist. LEXIS 2288 – Reliability Foundation; Curtilage; Alert as Probable Cause
Puskas v. Del. Cnty. (6th Cir. Ohio 2023) 2023 U.S. App. LEXIS 186 – Excessive Force; K9 Warnings
Walton v. Tunica Cnty. (Mississippi 2023) 2023 U.S. Dist. LEXIS 6 – Excessive Force; Handler Control; Qualified Immunity; Monell Liability
CASES REVIEWED FROM JANUARY 2023 FOR FEBRUARY 2023 UPDATE
United States v. Navarrete-Rivera (8th Cir. Minnesota 2023) 2023 U.S. Dist. LEXIS 3961
Alert as Probable Cause; Curtilage (Sniff at Apartment Door); Good Faith Exception (Leon)
Since this opinion was the adoption of the fact-finder’s recommendation (a procedure that is not used formally in California), the facts of the case are limited here. Apparently, due to CI information that suspect was in possession of controlled substances at suspect’s apartment, LE brought a controlled substances trained K9 to suspect’s apartment door. The K9 alerted. This alert, along with the CI tip, was included in a search warrant of suspect’s apartment which resulted in the seizure of controlled substances.
Navarrete-Rivera argued that the Eighth Circuit overruled United States v. Scott (8th Cir. 2010) 610 F.3rd 1009 in United States v. Perez (8th Cir. 2022) 46 F.4th 691, but the Court disagreed. Perez similarly involved a K9 sniff outside the front door of an apartment. The Eighth Circuit relied on the exclusionary rule, noting that at the time the officer in the case conducted the K9 sniff the court “had neither expressly overruled Scott nor explained how Jardines applies to apartment doors in a common hallway.” That was still the case here. The Eighth Circuit has neither overruled Scott nor explained how Jardines applies to apartment doors with common hallways, and thus Scott remains good law and the K9 sniff in this case was constitutional. Even if the K9 sniff was unconstitutional, the exclusionary rule applied, as the Court cannot find that the officers’ reliance on the search warrant and Scott was unreasonable.
Note: This holding is in contrast to other circuit jurisdictions that hold a sniff of an apartment door, even from a publicly used corridor or hallway, is a violation of curtilage and therefore a violation of the 4th Amendment. The US Supreme Court will have to weigh in sooner or later and I am pretty confident they will find that sniffs at apartment doors are unconstitutional. Best practice is to avoid these sniffs if at all possible or get a warrant to allow a sniff based on your investigation up to that point. You only need probable cause for a warrant to issue and while it’s more work, it also shifts the burden to the defense to show the warrant was bad, which is a pretty high standard. Also of note, a previous opinion in this case indicated that the affidavit for a search warrant only needs the information that the K9 was trained and certified to detect drugs. While this is great, I still think the more information on the K9 and handler team, the better. It doesn’t hurt and in our more liberal jurisdictions, the courts may ultimately require more.
State v. Wilson (Ohio 2023) 2023-Ohio-135
Traffic Stop; Prolonged Detention
Traffic stop for dangerous driving. The car was registered to a female, but LE could only see two males in the vehicle. After stopping the car, the front passenger wasn’t wearing a seat belt and there was a woman who appeared to be waking up in the back seat. The driver was nervous with several symptoms that were quite elevated and he seemed to be trying to conceal his face with a hat, In addition, his answers changed during the conversation. LE then called for a K9 team which arrived about 5 minutes after the stop. The handler told the occupants to roll up the windows and keep their hands in sight. Wilson, the passenger, tried to get out of the car which LE took to mean he was trying to distance himself from the contraband. The K9 alerted and contraband was found as well as a gun. A search of Wilson revealed heroin and paraphernalia, similar to that which was found in the car.
Wilson appealed his conviction and also his denied motion to suppress. He claimed that the stop was impermissibly prolonged. The court disagreed, holding that LE may briefly extend a traffic stop to inquire about the presence of illegal drugs or weapons. However, LE must ascertain reasonably articulable facts giving rise to a suspicion of criminal activity while inquiring to justifying a more in-depth investigation.
The court noted that Wilson made furtive movements as if to conceal something in the vehicle, acted excessively nervous, and attempted to hide his face. Considering a totality of the circumstances, the record supports finding LE had the reasonable, articulable suspicion of drug activity necessary to prolong the traffic stop.
Note: There really wasn’t any indication that there was a delay at all, but the outcome was the same. It’s important, though, that the government doesn’t go directly to justification without arguing that there was no delay at all (if the facts allow, of course).
Heaster v. State (Indiana 2023) 2023 Ind. App. Unpub. LEXIS 32
Curtilage; Alert as Probable Cause
During patrol of a parking lot of a motel in a high crime area, LE saw a suspicious truck and approached it to read the license plate. LE found a temporary paper license plate showing a VIN that did not match the VIN on the truck. The VINs came back registered to two different people. LE also saw items he associated with criminal activity inside the truck, including a saw, a ski mask, latex gloves, a knife, a black magnetic box, and baggies.
Two males approached the truck and LE. The first said the truck belonged to people he was staying with in room 233. The second said the truck belonged to a man with facial tattoos. The motel employee said that a man with facial tattoos was staying in 233 with the female who paid for the room. K9 sniff of the truck resulted in an alert. At that point, K9 was taken to door of 233 which opened directly to the outside. The K9 again alerted and LE decided to do a knock and talk. Female answered the door and LE asked if anyone else was there. She indicated Heaster who came from the bathroom. He had facial tattoos. They were both detained. Based on this information, search warrants were sought for both the truck and the room. There was cocaine, meth, pills, scale, bullets, seven cell phones and bank cards in other’s names in the truck. In the room was cocaine and heroin, a scale, multiple cell phones and two stolen firearms (searched prior to obtaining warrant, inexplicably).
Heaster appealed the denial of his motion to suppress based on his belief that the sniff of the truck and of the motel room door were unconstitutional. This state applied the Litchfield test (Litchfield v. State (Indiana 2005), 824 N.E.2d 356):
“[A]lthough we recognize there may well be other relevant considerations under the circumstances, we have explained reasonableness of a search or seizure as turning on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion [*6] the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.” Litchfield, at 361.
The appellate court therefore held as to the K9 sniff of the motel, LE had some degree of suspicion and need to investigate, given the incriminating evidence found in the truck and the information connecting the truck to the hotel room. While acknowledging the degree of suspicion and extent of LE’s needs were “not the highest possible,” the court held that considering the low degree of intrusion, the K9 sniff was reasonable under the totality of the circumstances.
As to the warrantless entry into the hotel room, the appellate court held that the search violated the constitution–while the degree of suspicion may have been high given the positive K9 sniff, so too was the degree of intrusion. And LE did not have a strong need to enter the room, as the record indicated there was time to get a warrant and there were no exigent circumstances. However, the appellate court went on to hold that because the affidavit supporting the subsequent search warrant contained sufficient probable cause even without the evidence obtained from the illegal warrantless entry, evidence discovered pursuant to that search warrant need not be suppressed.
Note: The court basically held that search warrant would have been sufficient if the K9 alert on the motel room was removed and the warrant re-analyzed with the remaining probable cause. In any event, though, the evidence that existed was sufficient to obtain a warrant. This is an appellate court being very conservative; if a more liberal court had heard the case, the evidence would probably been suppressed. However, the K9 sniff was approved. Interesting.
State v. Mayo (Ohio 2023) 2023-Ohio-124
Traffic Stop; Alert as Probable Cause; Reliability Foundation
Traffic stop for pulling off the road without signaling (it also appeared that Mayo was trying to shake the following LE vehicle). LE gave Mayo a warning tag (citation) for violation of a city ordinance. When Mayo refused consent to search, the K9 team was summoned and the K9 alerted. In the car was a loaded handgun and some marijuana.
Handler testified at the hearing and talked about the team’s training and experience and presented their certification for alerting on controlled substances (but not marijuana). Handler said that in training, her K9 was exposed to marijuana to make sure that K9 was not alerting on marijuana since K9 was not trained to detect marijuana. Handler also testified that K9 would alert to prescription medications that included the scents K9 was trained on.
The court first held that LE had an objectively reasonable suspicion that Mayo violated the ordinance. Therefore, the stop was legal.
Mayo then argued that since K9 could detect legal amounts of prescription drugs, the alert was not constitutional. This argument was based on the language from Illinois v. Cabelles which seemed to require the government to show that the K9 would only alert to contraband. Mayo also invokes the holdings in People v. McKnight, the Colorado marijuana case that held that under the Colorado constitution, an open-air sniff is a search if the K9 is trained to detect marijuana, which persons are permitted to possess under Colorado state law.
The court rejected this cobbled together argument, stating, “First, even if Mayo is right that an open-air sniff by a K9 trained to detect lawful substances is a search under the Fourth Amendment, an issue about which we offer no opinion at present, it is unclear why the State should have the burden of demonstrating that a particular sniff was not a search. The law in Ohio is clear that an open-air sniff by a properly trained drug-detection dog conducted during a traffic stop is not a search for Fourth Amendment purposes. Further, as a general matter, when there is a question whether a challenged governmental action was a search under the Fourth Amendment, the defendant bears the burden of proof on the issue.”
The appellate court went on to say: “But more importantly, from the available record, it cannot be determined whether the new legal standard proposed by Mayo would even apply. LE testified that on two previous occasions when K9 alerted, only legally possessed prescription drugs were found during the ensuing search. Therefore, LE agreed that K9 “is trained so as to alert to substances that are not contraband that a person has the right to possess.” However, notwithstanding LE’s representation, the fact that K9 had alerted on occasions where only legally possessed prescription drugs were found is not synonymous with saying that K9 was trained to detect these drugs. Significantly, LE testified that she was unaware which cocaine, heroin, and methamphetamine derivatives were used in training K9. She further stated that prescription opiates or amphetamines had not been utilized in her training with K9. Therefore, examining the totality of LE’s testimony, it is not entirely clear whether LE was describing K9’s tendency to alert to certain prescription drugs in accordance with her training or whether LE was conflating the discovery of prescription drugs during post-alert searches with K9 being trained to detect those specific drugs. The latter interpretation potentially implicates K9’s reliability rather than the scope of her training. Consequently, as the record does not conclusively support the application of Mayo’s proposed rule even if they were to accept it, the appellate court will proceed under the customary standard—that K9’s open-air sniff did not constitute a search for Fourth Amendment purposes because it did not implicate Mayo’s legitimate privacy interests.
The court then went on to hold that the alert by K9 was sufficient probable cause under the totality of circumstances to search the vehicle under the automobile exception. There was sufficient evidence that the K9 was properly trained and certified which were unchallenged by Mayo. Any “false positives” in the field were not enough to determine the K9 was unreliable.
Note: This was a bootstrapping argument by the defense, trying to claim that since the K9 was trained on possibly legal types of drugs, the K9 was not reliable. The Ohio court made short work of that, tossing the arguments out quickly. But be prepared to face more of these arguments. The way to deal with it is to turn it on its head: the K9 is alerting to one of the scents he/she is trained on and since he/she is trained on ones similar than that which could be legally possessed, the sniff and the alert are still valid probable cause for search.
State v. Arrieta (Iowa 2023) 2023 Iowa App. LEXIS 29 (Unpub.)
Traffic Stop; Prolonged Detention; Search Prior to Alert; Reliability Foundation; Cueing
LE was working at a weigh station on an interstate freeway popular for drug trafficking. A commercial vehicle failed on PrePass for vehicle registration. The driver was Arrieta. LE told Arrieta he was going to conduct a Level III inspection, which involved review of the driver’s documents and vehicle paperwork.
During the inspection, the VIN was discovered to have been reported stolen. LE called this in to determine is this information was still valid. Meanwhile, Arrieta told LE that he was only hauling insulation from Minnesota to Texas which would not have been a profitable trip for the customer. Arrieta was not using an electronic log book which allowed him to alter his information easily. There were also multiple inconsistencies and one entry that, if true, meant Arrieta average 77 mph over 11 hours (in excess of the 55 mph for commercial trucks). Based on all of this, LE called for a K9 team. While waiting for the team, information came back that although the stolen was not out of the system, it appeared from other data that the truck should not be held on this status. LE’s inspection continued while awaiting the K9 team and during the time of the sniff. The K9 team arrived at about25 minutes and alerted. There was marijuana in the passenger compartment of the truck.
Arrieta appealed the denial of his motion to suppress. He first complained that he was detained too long. The court of appeal held that first, he was required to stop at the scales; second, once LE decided to do a Level III inspection, the time was expanded to encompass that inspection; three, the multiple discrepancies and red flags were sufficient to allow LE to call for a K9 team and four, LE was still conducting his inspection at the time the K9 team arrived and alerted. And then Arrieta consented to the search of the truck. There was no evidence that the sniff and alert of the K9 team impermissibly prolonged the encounter. There were valid reasons for the extension of the stop that had nothing to do with the K9 team.
Arrieta also challenged the reliability of the K9. There were several entries in the training records of the team where the K9 had failed to alert to the presence of narcotics, had a false alert and laid down instead of sitting to alert as trained. Handler testified that the sitting v. lying issue was addressed and corrected in the first two weeks of a 200 hour training course and that overall, K9 did what he was trained to do. This was acceptable to the court as the K9 was generally successful and its behavior consistent with handler’s testimony.
Arrieta also complained that K9 only alerted on the second pass around the truck and that handler cued the K9 to alert. The handler testified that K9 was in odor almost immediately, but struggled to find the source. As the K9 continued to sniff, handler had him sniff the sleeper area access door and K9 finally alerted when he could locate the source. It is common for seams of doors to be the source for scent escaping the cab of a truck. Handler also had to untangle K9 from his leash. The video showed that K9 actually alerted once on the first pass, was rewarded, and then alerted again on the second pass. It also shows the handler running his hand close to the seams of the vehicle prior to the second alert. The court held that this was a reliable alert.
Arrieta finally claims that by K9 putting his paws up on the truck to try to find the source of the odor, this was an unjustified search. Arrieta did not supply any authority to back up his claim and the court found a couple of cases outside the jurisdiction that held such contact by the K9 did not constitute a search.
Note: The touching or the cueing arguments are ones we are seeing more and more. Best practice is to keep your K9 from jumping on the vehicle, but if he does, get him off as quickly as possible. And handlers should get to the point where they don’t have to point or touch or indicate where the K9 should sniff (not a big issue as of yet, but things can turn quickly). In addition, this was a K9 that had some issues in training that were remediated and the court found no issue with that. Training issues are just that; issues. Issues can and should be remediated and then, you’re good to go once the remediation is successful.
United States v. Stanger (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 14754
Traffic Stop; Prolonged Detention
Traffic stop for speeding, window tint and obscured plate. Once LE (handler) pulled in behind, driver slowed way down under the 70 mph limit. The car turned out to be registered in California one month ago. The driver, Tanya Stanger, was directed out of the car and told to stand by the passenger side of the cruiser. LE told her she was just going to get a warning when she apologized for the speed, but then began rambling. She said that they (her husband Bryce Stanger who was the passenger) were coming from California to see a concert in New York. However, the concert was cancelled for Covid and other reasons. Tanya could not tell LE the venue of the concert. They were just going to sight see for a few days. A criminal records check indicated that Tanya had been arrested many times for felony drug charges.
During the entire time that Corporal Conrad LE was speaking with Tanya, he was checking the car’s registration, running Tanya’s driver’s license information, checking her criminal history and any documentation, and reading information. LE explained that his system runs through an online network and the area in which the traffic stop occurred had limited connectivity, which slowed down the process of completing those tasks.
LE then got Bryce out after telling Tanya to have a seat back in her car. LE then directed Bryce out. As they passed each other, Bryce whispered something to Tanya. Bryce’s travel history was that they were out in Pennsylvania to pick up his grandmother, and then all three would travel to Florida to scatter ashes of relatives. Bryce also had a criminal history that involved felony drug charges.
When back up arrived, LE got his K9 from the cruiser and sniffed the car. K9 alerted and there was a huge amount of controlled substances and cash. The entire stop until the alert was about 50 minutes.
The court first held that the first 13 or so minutes were spent with Tanya and even if many of LE’s questions could be deemed extraneous, they did not in any manner extend the length of the stop. Therefore, nothing improper occurred by virtue of that questioning, as inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.
The court then determined if there was additional reasonable suspicion to prolong the investigation. The car had tinted windows which is consistent with drug trafficking; I-80 is a drug trafficking corridor; the car was speeding until it acknowledged LE; the car was plain without any stickers or other personalized markings; the car was registered in a town that bordered Mexico; registration was only a month old; the covering of the license plate; excessive nervousness by Tanya; New York is a known source and consumption city for narcotics; the vehicle was a salvage, also common for drug trafficking because compartments can be built in during the repair of the vehicle; and, Tanya and her husband had different stories. Both also had criminal drug histories.
The Court concluded that these facts collectively provide reasonable suspicion that the Stangers may have been transporting narcotics, which provided justification for LE to extend the Stanger’s detention beyond the initial traffic stop when considered collectively.
Therefore, the available evidence sufficiently established that the first approximately thirteen and one-half minutes of the traffic stop—during which time LE spoke with Tanya—were dedicated to the mission of the traffic stop. Although LE quickly determined that he would likely issue only a warning for speeding, he then inquired about the Stanger’s travel plans, and the United States Court of Appeals for the Third Circuit has “held that some questions relating to a driver’s travel plans ordinarily fall within the scope of the traffic stop.” Furthermore, LE’s subsequent decision to check Tanya’s driver’s license and criminal history was justified as part of the traffic stop. LE asked, however, a number of questions that may well have exceeded the scope of the traffic stop, including numerous questions related to the Kia, its purchase history, who had sold the vehicle to Bryce, and when Tanya had discovered that the concert she stated she wished to attend had been canceled.
Nevertheless, the court held these extraneous questions were asked while LE ran a license and criminal history check on Tanya and conducted other activities related to the traffic stop—not only did LE assert in his report that “[a]s I was questioning [Tanya], I conducted a criminal history check,” but it is evident from the video footage of the traffic stop that LE was continually typing information into his keyboard while speaking with Tanya. LE then ceased his questioning of Tanya once those checks were completed. Even if many of LE’s questions could be deemed extraneous, they did not in any manner extend the length of the stop. Therefore, nothing improper occurred by virtue of that questioning, as inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.
Here, LE did not unreasonably extend the traffic stop during its initial approximately thirteen and one-half minutes as he spoke with Tanya while running her driver’s license information, checking the Kia’s registration, and performing other tasks. Although such tasks ordinarily would not take so long to accomplish, they were prolonged by the poor cellular connectivity at the location, and the video footage of the stop confirms that LE was working on those tasks during the entirety of his conversation with Tanya. Therefore, LE obtained the majority of the information supporting his reasonable suspicion that drug trafficking was occurring prior to completing the tasks related to the purpose of the traffic stop.
Because LE had sufficient cause to keep the Stangers detained during the duration of the traffic stop, the only remaining question is whether there was probable cause to search the Kia. LE’s use of a certified drug detection K9 to conduct a free air sniff of the exterior of the Kia, an action that indisputably did not violate the Stangers’ rights, found that the search of the Kia was lawful, and the motion to suppress any evidence seized will be denied.
Note: When there are things outside the actual investigation of the traffic offense that are not of LE’s making, most courts are holding these detentions are still justified. Here, it was the poor connectivity of the area which slowed things down. There was recently a case where the suspect was a constitutionalist and asked many inane and inappropriate questions and also refused to answer many of LE’s questions, resulting in a delay. Since these types of delays were outside the control of the LE performing the stop, the court gave the benefit of the doubt to LE. Here, the traffic and the drug investigation were basically simultaneous to the extent that LE had developed additional reasonable suspicion by the time the traffic investigation should have come to a close.
Pettaway v. Barber (Alabama 2023) 2023 U.S. Dist. LEXIS 15940
Unlawful Search/Seizure; Excessive Force; Monell Claim
A residence belonging to Harris was uninhabitable due to neglect. Harris agreed that Jones could live in the residence while Jones repaired it. Dixon, a cousin of Pettaway, and Pettaway assisted Jones. Pettaway never spent the night there. On a day they finished installing a window, they had a barbecue at the residence. Dixon obtained Jones’ consent to stay overnight. No one else had permission. Early in the morning, Dixon heard knocking and saw a man’s hand inside a bedroom closet. Dixon left the residence and called 911. Dixon also called Jones, who responded to the scene.
LE sent a K9 unit to the scene. A perimeter was established around the home. A window had been removed from its frame. K9 team arrived prior to Jones’ arrival. Handler is told that LE is waiting for Jones. Handler had to wait because agency policy stated that homeowner permission is needed to search a home. Dixon does not tell anyone that the house does not have power.
Once Jones arrives and gives permission, knock notice by handler for K9 is performed twice at the front door. K9 is then deployed off leash into the house. About 30 seconds later, handler enters the house. Handler is in the living room when K9 finds Pettaway and bites him. Handler finds K9 attached to Pettaway’s leg as Pettaway is under the bed. Pettaway is told to come out from under the bed. Pettaway moves around under the bed and pleads with handler to let the dog off. Handler continues to tell Pettaway to get out from under the bed and encourages K9. Pettaway’s leg emerges from under the bed. Handler continues to encourage K9 and instruct Pettaway to get out from under the bed as Pettaway continues to scream.
Pettaway tells handler that he is trying to get out from under the bed but cannot; handler continues to instruct Pettaway to get out from under the bed. Pettaway’s arms emerge and handler tells Pettaway to show his hands and get on his stomach. K9 is seen attached to Pettaway’s leg. When Pettaway’s hands are visible, handler tells Pettaway to give him his hands. Pettaway immediately complies, and handler begins to handcuff Pettaway. Handler appears to finish handcuffing Pettaway. Handler tells Pettaway that “he’s coming,” and then handler physically chokes K9 off of Pettaway to disengage the bite. The entire bite duration was a minute and a half. Pettaway’s hands are visible at one minute, 15 seconds and handcuffing as well as removing the K9 took about 15 seconds. A minute after that, handler then radios for medical assistance for Pettaway. Handler then leaves Pettaway there and tells him to hang tight. As the K9 team exits, the remainder of the LE team goes in. Four minutes later, LE move Pettaway outside the home to await medical response. They wait another 5 minutes for medical but do no first aid. At the time, the agency had a policy prohibiting officers from providing medical assistance to persons injured in a police endeavor unless the officer had medical training in that form of assistance. Besides CPR, the agency did not, at the relevant time, provide any first aid training to its officers. Pettaway is taken to the hospital but has bled out by then.
The first cause of action asserted that handler committed an unlawful seizure under the Fourth Amendment because handler did not have probable cause to seize and arrest Pettaway because he did not have reliable evidence to believe Pettaway committed a serious offense in the home. Handler argued that Pettaway’s failure to respond to his warnings constitutes an abandonment of this claim. The court agreed and ruled for the handler, dismissing that count.
The court then turned to the excessive force claim. Handler asserted qualified immunity. Excessive force claims under the Fourth Amendment look to whether the force exceeds that which would be applied by an objectively reasonable officer on the scene. Factors from Graham v. Connor guided the court’s assessment of reasonableness, and the court examined “(1) the severity of the crime; (2) whether the individual ‘pose[d] an immediate threat to the safety of the officers or others’; and (3) whether the individual ‘actively resist[ed] arrest or attempt[ed] to evade arrest by flight. The Eleventh Circuit assessed three additional reasonableness factors: (4) the need for force to be applied; (5) the amount of force applied in light of the nature of the need; and (6) the severity of the injury. As the Court is bound to apply all six factors, the Court referred to them collectively as the Graham factors (even though the last three are not actually from the Graham opinion).
Here, handler responded to the scene pursuant to a request for a K9. When he arrived, officers had formed a perimeter around the home. Handler learned that an unknown person was inside the home that did not have permission to be there. He was also told that no other people, animals, or guns were inside the home. While he waited for the homeowner to arrive, handler did not make contact with or attempt to communicate with the person inside the home. After receiving permission to perform a K9 sniff, handler approached the front door with his K9. Handler called out twice in rapid succession in a manner that was unintelligible. Eleven seconds after first calling out, and three seconds after calling out the second time, handler released the off-leash canine into the home.
At oral argument, handler conceded that once the K9 was deployed, the bite was inevitable. Thus, the Court focused the excessive force analysis on whether the initial deployment of K9 was justified.
The court held that the unintelligible warnings given here were akin to no warnings at all. There was no safety reason not to give clear and intelligiible warnings at this scene. When the K9 was deployed, handler knew that an unknown person remained inside the home without permission. Although hander knew someone was inside the home, he did not know the person was concealed under a bed when K9 entered the house. On the information handler had at that time, a reasonable officer would not have reason to fear that issuing an adequate K9 warning would place his life at increased risk. Thus, the Graham factors weigh less heavily in favor of deploying a canine.
The crime at issue was a possible burglary. The burglary here, however, was somewhat severe because it involved an occupied residence. Also, the K9 was deployed against a suspect that was not obviously non-compliant at the time. When Barber deployed K9, Pettaway was inside a home without the homeowner’s permission. Thus, some of the Graham factors weigh less heavily against the use of force.
However, the remaining Graham factors weigh more heavily against deploying a K9. Here, handler did not give an adequate warning with sufficient time for Pettaway to respond, and perhaps, surrender. Also, when handler deployed K9, he knew that the police perimeter around the home reduced the risk of flight therefrom. Although deploying a K9 is not deadly force per se, it is “extraordinary force.” Here, handler bypassed steps on the continuum of force. The scenario here, at the time the K9 was deployed, was not a tense, rapidly evolving situation requiring split-second decision-making. There is no suggestion that prior to deploying K9, a clear, verbal warning that the K9 would be released if the suspect did not surrender, and adequate time allowed to surrender, were not possible or could have placed officers in danger. Thus, releasing a K9 in these circumstances does not weigh in favor of LE.
The final Graham factor examines the severity of the injury. Deploying a K9 is extraordinary force and often leads to injury. As this case illustrates, albeit unlikely, death is one of those potential injuries. Graham looks to the severity of the injury caused, not the severity of the injury intended. Death is the most severe injury possible, and this factor weighs in Pettaway’s favor.
The court also stated that material portions of handler’s body camera footage reveal that handler’s rapid statements at the front door were unintelligible. To be clear, the Court does not suggest that officers have an affirmative duty to provide a K9 warning; they do not when doing so would endanger LE or others. Under these facts, however, the situation was not rapidly evolving, Pettaway was alone inside a home that was surrounded by police, and handler could have provided a sufficient K9 warning from outside the home. Handler’s deployment of the K9 without a sufficient warning was not a reasonable use of force under these circumstances.
The second prong of the qualified immunity analysis asks whether the violation of the federal right was “clearly established” at the time of the violation. The relevant question is whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. The unlawfulness of such conduct can be clearly established in three ways: “(1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.
Here, handler failed to provide a sufficient warning and opportunity to respond before deploying K9. Although handler called out twice prior to deploying the K9, the warnings were rapid and unintelligible. Furthermore, handler’s two, quick, unintelligible warnings were not in compliance with agency protocol, which provided that officers should give three warnings before deploying a K9. The Court does not suggest that a violation of agency policy clearly establishes a constitutional violation, but policy can indicate how a reasonable officer would behave in the situation.
Here, force was prematurely used against a suspect that did not actively resist arrest, make threatening movements, or have the opportunity to comply with police commands. A reasonable officer would not need prior case law to know that sending an off-leash K9 into a surrounded home before adequately communicating with a solitary suspect or providing that suspect an opportunity to respond, in violation of department policy, constitutes excessive force. Accordingly, handler is not entitled to qualified immunity, and his motion for summary judgment on this claim is due to be denied.
The court then addressed the Monell claim. Pettaway asserted that the policy of the agency to prohibit medically untrained LE at the scene to provide medical aid resulted in Pettaway’s death. However, the court held that the agency’s constitutional obligation to provide medical aid was satisfied when the officers on the scene promptly summoned medical aid for Pettaway. Handler called for medical assistance less than one minute after K9 released his bite. Pettaway has not argued that handler delayed medical assistance or did not promptly call for such assistance. Thus, Pettaway has not established that handler was deliberately indifferent to Pettaway’s medical needs. Accordingly, Pettaway cannot show that his Fourteenth Amendment right to prompt medical aid was violated. And because handler did not violate Pettaway’s Fourteenth Amendment right to medical aid, neither did the agency. As such, Pettaway has not established the first requirement of a Monell claim: that a constitutional violation occurred. Thus, there is no need to inquire into Montgomery’s policies or customs. Because Pettaway cannot establish the requisite constitutional violation, the agency’s motion for summary judgment on this claim is due to be granted.
Note: This was an avoidable situation. Here, all LE knew at the time was that there was someone in the house who was not supposed to be there. While that individual could have been armed, there was no basis for giving unintelligible warnings or using one less than agency policy required. A perimeter had been set up and a LE on the other side of handler could have confirmed that the warnings were understandable. Instead, two rapid fire, unintelligible warnings were given which was the equivelant of no warnings. This was a violation of the deceased’s rights. The really bad part is that this death was absolutely avoidable. Practice your warnings with a colleague positioned on the other side of where you are directing your warnings. If he or she has trouble understanding or hearing you, modify what you do until they can understand you.
Serna v. Holbrook (California 2023) 2023 U.S. Dist. LEXIS 5243
Coercion Using a K9
In this home invasion robbery, Serna, along with his compatriots, beat and bound victim in his home and threatened to kill his son if he did not open the safes in the home. He was able to open one safe but denied knowing the combination of the other safe. After using pliers to twist victim’s nose and beating him with a pool cue, he opened the second safe. The robbers got away with the contents and victim’s truck among other things. The robbers were found with the stolen property later in the investigation.
Serna asserted a bunch of theories as to why he didn’t get a fair trial, but this review will deal with only the part where a K9 is involved.
A police K9 was used in apprehending Serna, and located him in a field (Serna apparently was not bitten). He was then taken to the sheriff’s office and interrogated after a Miranda warning in Spanish. Serna challenged that Miranda warning as insufficient in many ways; in particular, Serna argued that police coercion rendered his waiver involuntary because he feared attack by a K9 when he was taken into custody, he was detained for nine hours before he was interrogated, he did not know why he was being detained, and he was handcuffed during his detention; his handcuffs were removed only after Miranda warnings were given. Finally, he was not advised of his right to consular notification under the Geneva Convention (Serna was apparently a national of another country). According to Serna, these “coercive factors” rendered his waiver and subsequent confession involuntary.
However, Serna could not point to any evidence suggesting that the circumstances of his interrogation were employed by the police to pressure him into waiving his rights. There was nothing to indicate that the presence of the K9 during Serna’s arrest, which occurred hours before his interrogation, led to a coercive environment during the interrogation. The K9 was not used during the interrogation to apply psychological or physical pressure on Serna, for instance, nor was he advised of his Miranda rights in the K9’s presence.
Note: This case was truly a last, desperate grasp at his last legal opportunity to get his conviction overturned. However, the court didn’t buy his argument. It seems a bit silly in the context of the case, but this type of argument is showing up more and more; that LE is using scary dogs who look and sound scary to make suspects do things they wouldn’t otherwise do. Best practice is to make sure any deployment can be justified under the law and that you get as much or all of the encounter recorded on body cam.
United States v. Simmons (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 5401
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause
LE was following an Escalade when it was discovered that the Escalade was exhibiting plates assigned to another vehicle. LE followed to determine if it had been reported stolen. Simmons, the driver, then sped up and turning onto several side streets until he stopped and parked. LE caught up and positioned their vehicle behind and slightly offset and attempted to get more information on the plate from their dispatch. Meanwhile, Simmons got out, locked the Escalade and started walking at a fast pace away from the vehicle. He agreed to come back to the cruiser when asked.
Simmons was wearing a full balaclava mask (it was cold out), and had a key chain with a marijuana reference. He had a cell phone and used it to speak or text to other people during the contact. There was also a “Pothead” sticker that appeared to be covering a bullet hole. Simmons refused to assist in getting the registration and claimed he did not own the Escalade. During a Terry frisk, Simmons was texting someone. Simmons then claimed that his girlfriend’s mother owned the vehicle. Simmons called her but she said she could send a copy of any paperwork.
LE continued to work on where the car was that belonged to the plates. He also found out that Simmons did not have a license (it was suspended) and he had a criminal history that included felony drug related charges. He also admitted he was on patrol. As they further investigated the plate issue, one of the LE officers said they might need a K9 team to respond. Ultimately, after being told that a K9 team would be called if there was no consent to search, the girlfriend over the phone gave consent to have the K9 sniff the car.
The K9 team arrived shortly after and alerted to the car. After obtaining a search warrant (Pennsylvania does not have an automobile exception to a warrant), LE found a firearm and marijuana.
Simmons claimed suppression was warranted because LE diverted from the ordinary business of the traffic stop immediately by summoning him back to the Escalade. Alternatively, he asserted they broke from the mission of the traffic stop by preparing to call a K9 handler and requesting consent to search the vehicle.
The court determined that the Rodriguez moment was when LE first mentioned he intended to search the vehicle as opposed to when the call was actually placed. However, prior to this moment, LE had found out Simmons had felony drug charges, had a suspended license and was on parole. LE’s inability to confirm the Escalade’s ownership, combined with Simmons’ evasive driving, quick retreat from the vehicle, obstinate refusal to retrieve necessary documents from it upon demand, lack of a valid license, previous convictions for drug crimes, parolee status, and the references to drug use on his person and the Escalade, provided reasonable suspicion Simmons was hiding controlled substances in the vehicle.
Lastly, the court held, to the extent Simmons suggested LE needlessly prolonged his detention by delaying the K9’s arrival and seeking consent to search the Escalade in the meantime, his assertions were unavailing. Whatever delay might have occurred is directly attributable to Simmons’ own conduct and only arose after LE suspected he had contraband in the vehicle. Simmons frustrated the troopers’ efforts to conclude their traffic-related mission by repeatedly refusing to retrieve the vehicle’s registration and proof of insurance. LE displayed patience and flexibility by allowing Simmons to contact his girlfriend several times ostensibly to obtain digital copies of those documents. Simmons then further prolonged the stop by insisting they do nothing until she arrived. Undeterred, LE requisitioned a drug-sniffing K9 while waiting for proof of ownership to materialize. The K9 arrived a few minutes later and alerted. Simmons’ suppression motion rises and falls on the validity of his investigative detention, which the court found that LE executed properly in all relevant respects.
Note: Interesting case. The court does not spell it out but it appears that the registration was on-going AND there was reasonable suspicion to suspect drug trafficking. The fact that LE were patient and tried to work with Simmons to obtain the correct owner of the car indicated that most of the delay came from Simmons refusing to assist in the registration issue and other uncooperative behavior. If this happens to you, be sure to get it on body cam and stay calm and patient. It’s worth it. The video in this case will be great.
Trexler v. City of Belvidere (Illinois 2023) 2023 U.S. Dist. LEXIS 12662
Excessive Force; Monell Claim; Use of Force Experts
After being kicked, beaten, and bitten by a K9, Trexler sued defendants City of Belvidere (City) and officer Parker alleging they violated his constitutional rights.
The court in this case initially stated that it looked with disfavor on the testimony of use of force experts. In fact, it said, “If civil rights counsel—both plaintiff and defendant—have not yet comprehended the point, the Court will be clear. Use of force “experts” find no quarter at the . . . Courthouse, particularly when they play judge and offer legal conclusions. Retired law enforcement officers and academics should pedal their wares elsewhere.”
Trexler was walking with a female companion when Parker saw them, believed they were underage and therefore in violation of curfew. Parker parked his car in front of them, and got out with his K9. Within 8 seconds of the stop, Parker kicked Trexler, which caused him to fall in the street and out of range of the dash cam. Parker can be heard screaming a command to K9, ordering Trexler not to move and Trexler can be heard yelling “I’m down” and “I’m not moving.” The K9 had bitten Trexler.
In this civil rights suit, both sides indicated they wanted an expert to testify. Parker’s attorney argued that Trexler’s expert, Burwell, was too far removed from the field and his knowledge was stale. The court allowed this portion of Burwell’s testimony. However, the court also ruled that any opinion of the use of force is prohibited, as opinions are not authorized by statute to be legal conclusions. Finally, Burwell was ordered not to reference or apply the standards set forth in Graham v. Conner because such an opinion or application of the standards are a legal conclusion.
Under the Monell claim, an analysis of previous instances of force by Parker may assist the jury to determine if the City should be held liable under a Monell claim based on a theory that there was a de facto policy so well settled to constitute a custom or practice. A starting point to that analysis can be evaluating how Officer Parker previously used his canine against other citizens. Burwell’s opinions on previous instances that Officer Parker deployed his canine are admissible to the extent that the opinions are limited to whether those instances deviated from sound professional standards. These opinions, however, are not sufficient to state a Monell claim but may be helpful and relevant to the jury in deciding if the claims Trexler brings against the City have merit. Then, the court disallowed Burwell from “interpreting” the dash cam video. The jury can simply watch and listen to the footage and make their own decision. Finally, Burwell cannot opine that Officer Parker violated the City’s policies in this case and others. However, the Court found that Burwell’s testimony on K9 policies might be helpful to the jury in understanding when it is appropriate to use a K9.
Then Trexler wanted Parker’s use of force expert booted. First, the expert cannot opine on the reasonableness of the first contact. He cannot testify as to the reasonableness of Parker’s use of force for basically the same reasons as above. Finally, any testimony about the written agency policies is inadmissible because Trexler’s complaint focuses on an de-facto policy of allowing excessive force with K9s and not an official policy.
Note: Often, civil attorneys like to use experts because they try to get the expert to testify to the issue at hand, such as was the force excessive? These question are to be answered by the jury after deliberation of the facts and the law, so an expert testifying to it is improper. I included this case because the federal court laid out why experts are not always a value-add to a case on either side.
Womic v. Cortez (North Carolina 2023) 2023 U.S. Dist. LEXIS 11213
Corrections Use of K9; Excessive Force; Qualified Immunity
Cortez is a K9 Officer assigned to the jail. Cortez and K9, together for 2 years, were properly certificated and trained at the time of the incident.
Between March 31, 2020, and May 10, 2021, prisoner Womic had roughly 40 incident reports filed against him while incarcerated at the jail. Some of these incidents involved fighting with and assaulting other inmates, disruptive behavior, refusal to follow commands, property damage, and threatening officers.
On May 10, 2021, after “all-quiet hours,” Cortez was working in the Jail with K9, and wearing his distinct dark green K9 officer uniform. At around 11:20 p.m., Cortez and K9 were in Central Control when Cortez heard another deputy radio for assistance in B-Block because an inmate had been hitting his cell door. Cortez and K9 ran to B-Block with other officers in response.
Cortez arrived and stood next to the doorway of the cell with K9. Cortez believed that his presence was apparent as was his status as a handler. (While there is no mention of this, if K9 was barking, that would also serve to identify the K9 team). Inmate was refusing orders and told the other deputy he was ready to go, which LE believe meant that inmate was ready to fight. As deputies opened the cell door and attempted to spray pepper spray, Womic punched a deputy in the head. The deputy fell to the ground and Cortez believed that Womic presented a direct and immediate threat to officers. “Dog, dog, dog!” and hearing another deputy announce verbal commands warning Womic, Cortez deployed K9 on a leash and under his command who then bit Womic on the arm. After Womic was handcuffed and the threat was abated, K9 was given a command to release which he immediately did.
The court reviewed the video tape evidence. There was no discernible evidence that Womic said he was “ready to go.” Also, it appeared that Womic’s view from the cell of Cortez and K9 may have been obstructed. The video did not have a view of Womic’s hands, so although a deputy said he was balling up his fists, there is no video of that. However, it does show that Womic punched a deputy. As other LE piled into the cell, Cortez was holding K9 back until Womic was falling backward about 5-6 seconds later and the K9 bit Womic on the hip. The bite was about 15 seconds in duration. No warnings can be heard on the video.
Cortez claimed qualified immunity. The court held that since there was a conflict in the evidence regarding whether a warning was given and the fact that there was overwhelming force–11 officers to one inmate), there remained a triable issues of fact. A jury could find that one inmate banging on a cell door did not require such a response. In addition, the jury could find that no effort was made to temper the amount of force applied.
Note: At trial, if this gets this far, the government should put on a jail expert to talk about the dangers of a prison made weapon, particularly with an inmate with this amount of write-ups, including those for violence. Also, the testimony of Cortez is that K9 bit inmate on the arm and the video shows K9 bit him in the hip. That discrepancy needs to be cleared up or it will accrue to the detriment of the government.
State v. Crane (Ohio 2023) 2023-Ohio-188
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause
During surveillance of a motel that was known for drug activity, detectives saw a Honda pull up and a man walked into the motel carrying a silver lockbox. This box was too small to be used for luggage and LE believed it therefore contained drugs. While this was going on, another car pulled up and parked right next to the Honda, even though the parking lot was basically empty. A woman got out, went into the motel and almost immediately came back out and left. The man with the lockbox also came out and drove off. The plates on the Honda were for another car. LE followed the Honda to make a stop for the wrong plates. A patrol deputy was contacted by detectives and told that a silver Honda in the area had the wrong plates and was being followed by detectives. Patrol located and pulled Crane, the driver, over. Crane rolled up his window upon stopping, initially refused to exit the vehicle, refused a request to be searched prior to coming back to the cruiser and refused a consent to search the vehicle. Crane said he did not have a license with him.
Detectives arrived about a minute after the stop. Once Crane was seated in the cruiser, patrol handed the citation off to detective, then got his K9 out and sniff the vehicle. The K9 alerted and the car was searched. A silver lockbox was found on the passenger side floorboard. Inside was a large amount of methamphetamine and Crane was carrying a firearm on his person.
In the case at bar, the K9 was already on the scene at the time of the initial stop. Crane claims that because patrol decided to transfer the issuance of the citation to detective while patrol retrieved his K9 partner to conduct the free air sniff, he delayed the issuance of the traffic citation. Upon review, the court found the actions of patrol did not add time to the stop.
Here, detectives were involved in an investigation of drug activity at a local motel. Detective had observed what he believed to be indications of drug activity involving the suspect car, including observing a male carrying a small silver box into the car. Thus, the officers were justified in continuing the detention beyond the normal period required to issue a citation because the officers had a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop. Therefore, even if the stop of Crane was delayed, no constitutional violation has been demonstrated.
Finally, nothing in the record suggests that the detention of Crane was of sufficient length to make it constitutionally dubious. Once the K9 alerted to the vehicle, police had probable cause to search that vehicle for contraband.
Note: Nothing really new here, but good coordination by patrol and detectives.
Poulin v. Bush (Florida 2023) 2023 U.S. Dist. LEXIS 6889
Excessive Force; Qualified Immunity
Victim called 911 and said her neighbor, Poulin, had entered her home and was going crazy. She was pleading with Poulin to stay away from her children as she was attempting to shepherd Poulin to another area of the house. Poulin could be heard in the background before the call dropped.
By the time 911 recontacted victim, she was outside the residence and so was Poulin. Victim said he was a danger and begged for response. 911 told her help was on the way and that she and her husband should stay in the residence.
LE arrived to find Poulin outside with his wife. K9 training officer (K9 TO) contacted Poulin and handler contacted his wife and another neighbor. However, Poulin started slowly meandering his way towards the other officer K9 TO before veering off and stumbling up his inclined yard.
Upon regaining his footing approximately halfway up his yard, Poulin stopped and turned towards handler talking to his wife. The two briefly exchanged indiscernible words before Poulin tripped again, making physical contact with K9 TO as he stumbled down his yard towards the street. Poulin caught himself on a trailer parked in the road.
At this point, K9 TO closed the distance and forcibly shoved Poulin into the trailer/onto the ground. Poulin landed in a small gully parallel to the parked trailer as K9 TO mounted his back and attempted to handcuff him. Notwithstanding his position, K9 TO claims that “he was unable to control him.” Handler then approached with his taser drawn and advised K9 TO to get off of Poulin so that Poulin could be tased. K9 TO obliged.
Even though he was tased three times, he was still uncooperative, screaming “fuck you” before refusing to lay down so he could be cuffed. Eventually, Poulin was able to sit up as officer and handler stood back. LE claimed that they felt threatened by the act of Poulin resisting and not complying with any of his lawful commands, and then getting a taser used on him and it having no effect.
Meanwhile, two more officers showed up for back up. Poulin can be seen on video sitting upright with his legs spread in front of him as officer and handler to gain his compliance through a verbal exchange. Poulin did not comply with their commands. Back up claimed that Poulin was saying, ‘[f]uck you, come get me.’ He was yelling . . . [and] making odd noises.” Back up further described Poulin’s behavior as “something that I’ve never experienced.”
Handler then retrieved his K9. He returned with the K9 in 30 seconds. Poulin was still sitting up, waving his arms and yelling. Handler released K9 onto Poulin within three seconds of rejoining the other officers. According to Poulin, he was never warned that K9 was present or going to be released. K9 immediately bit Poulin’s right arm. When Poulin jerked back and attempted to push K9 away, officer kicked or struck Poulin in the face. This sent Poulin onto his back. K9 then sprang forward to bite Poulin’s right arm again and pulled him into a prone position. All officers then began to strike Poulin and drive stun him.
K9 was removed but Poulin was able to free his arm from LE’s grasp. Another officer was on Poulin’s back, striking him, while others were again drive stunning him.
Handler consequently moved K9 back in for another bite. In the excitement, though, K9 accidently bit an officer. Handler immediately removed K9 from the officer and again commanded K9 to bite Poulin. LE was able to get handcuffs on Poulin.
Poulin received medical treatment for severe injury to his arm and it was determined that he had cocaine, THC and alcohol in his system.
The court addressed handler’s use of his K9 in this incident. When handler released K9 onto Poulin, the need for force was significantly diminished. At this point, the other LE were on the scene. Poulin, still unarmed, was sitting upright in the small gully next to the parked trailer with his legs spread before him as five police officers stood on higher ground to his right. Poulin was completely contained from the perspective of any reasonable officer on scene. Further, other than his tripping and falling into another LE officer on scene, Poulin had not attempted to physically engage with anyone. Poulin also never attempted to stand up or flee. In the time between LE’s third taser deployment and handler’s release of K9, Poulin simply remained seated on the ground.
The Court recognized that Poulin displayed an agitated and aggressive tone during this period. It is worth noting, however, that Poulin is not accused of directly threatening anyone beyond yelling expletives. Shouting expletives and sitting up were the extent of his active resistance. From the perspective of any reasonable officer on scene, this conduct—which took place as Poulin remained seated in the small gully surrounded by multiple police officers and a parked trailer—could not transform Poulin into a great danger. Objectively, Poulin posed very little threat of immediate bodily harm to anyone. The remote possibility of Poulin having a weapon on his person, despite being shirtless and largely keeping his hands visible, does not change this fact.
This brought the Court to proportionality. As an initial matter, the use of a K9 on a stationary, contained, and unarmed suspect represents a significant increase in force from the use of a taser. Tasers subdue suspects by temporarily incapacitating their nervous system through the measured release of electrical currents. K9s subdue suspects by maiming their flesh through largely uncontrolled biting. That being the case, it is difficult to discern any balance between the need for force and the type of force used here.
At the time K9 was ordered to bite, Poulin was in a controlled position surrounded by five officers and had not attempted to flee. Handler also allowed K9 to continue his attack on Poulin after K9 had already pulled Poulin into a prone position and the LE present had begun striking Poulin and drive stunning him with their tasers. It was unclear to the Court how Poulin was to surrender his right arm to LE while K9 continued to bite it. Any attempt by Poulin to pull his right arm behind his back as commanded likely would have caused K9 to bite down more vigorously. And if the ultimate goal or need was to handcuff Poulin, there is no sense or proportionality in continuing to use a form of force that makes it impossible to effectuate handcuffing. This is not to mention that, after fully separating K9 from Poulin, handler moved K9 back in for another, second episode of biting.
Finally, unlike the taser deployments, K9 caused significant and permanent physical injury. Poulin spent sixteen days in the hospital recovering from the severe lacerations and tissue defects he incurred from K9. Poulin’s arm is permanently disfigured. It will never function the same.
Given the totality of these circumstances, the Court found that handler’s use of K9 was objectively unreasonable. Within three seconds of bringing K9 to the site, handler released him onto an unarmed, seated suspect who was fully surrounded by officers. Poulin posed a minimal threat at worst. Viewing the evidence in a light most favorable to Poulin, he certainly posed no greater threat than he did at the time of the initial taser deployments. All the same, K9 was allowed to attack Poulin repeatedly, even while the LE punched Poulin and drive stunned him with tasers. The excessive nature of this K9 use is evident from the video footage and third-party witness testimony contained in the record. The lack of necessity is equally apparent. There is no doubt that the Fourth Amendment’s guarantee of freedom from excessive force would ultimately mean very little if it did not encompass the right not to be attacked by a police K9 in these circumstances.
Poulin was not fully incapacitated after the taser deployments. But he was unarmed, surrounded by officers, and seated on the ground with his legs spread before him. If anything, Poulin posed a minimal threat. And there was no legitimate basis for employing such a high, maiming level of force on him under these circumstances. The use of K9 was disproportionate and unwarranted.
The Court did not discount the difficulties that police officers face in rapidly evolving and tense situations. The Court merely emphasizes that, when proceeding with ample time and control over a situation, officers must only resort to a form of force that is both proportionate to the threat before them and purposed to achieve their objectives (i.e., not counterproductive, like the subject K9 use in effectuating Poulin’s handcuffing). Force for the sake of force is unconstitutionally excessive by definition, and it is at the heart of what the Fourth Amendment aims to protect against. Because handler’s use of K9 essentially amounted to just that, the Court found that this K9 use was so far beyond the hazy border between excessive and acceptable force that handler must have known he was violating the Constitution, even without materially similar case law on point.
Note: The court described the K9 deployments as uncontrolled biting. This is not a good perception for the court to have. A handler must be in control of his/her dog at all times, even when on the bite. In addition, Poulin tried to sue the department for failure to train and/or supervise, and even though there was some fairly bad facts, the court held that Poulin did not meet his burden on that issue. However, this is Florida, a state in the deep South, that has had some pretty nasty cases. It’s a conservative state, but I believe that we can no longer rely on that to assist us. Judges, especially federal appellate judges, are just not putting up with this type of behavior any more. In addition, even if in the distant past, K9s were used for “pain compliance,” the legal climate now is such that using a K9 bite for such compliance is absolutely unacceptable.
Dastinot v. Watkins (Maine 2023) 2023 U.S. Dist. LEXIS 2269
Excessive Force; K9 Warnings; Qualified Immunity
Dastinot and his group were trying to get a taxi after a night of clubbing. LE saw them and believed they were blocking the public street. LE approached intending to warn them about blocking the street. LE directed them to ID themselves and Dastinot initially refused but later gave LE his ID. Their police cruiser was in the middle of the street with its lights on. Dastinot said they were not blocking the road but standing on the sidewalk.
Dastinot and LE get into an argument with raised voices and expletives. LE warned him about disorderly conduct which Dastinot said didn’t happen. Dastinot swore at LE and LE told him he was under arrest and Terry frisked him. Dastinot started to fight with them, with LE alleging that Dastinot punched one of them. The stories diverge from there, but ultimately Dastinot was drive stunned by a taser. Dastinot fell to the ground. Two officers and Dastinot continued to struggle. A bystander video showed two officers on top of Dastinot and clicking sounds are heard which was probably the taser. The bystander can be heard stating Dastinot was not resisting.
Handler arrived at this point and got his K9 from the vehicle. He told them to get off Dastinot so he could deploy the K9. They obliged and K9 bit Dastinot in the thigh. Dastinot complied with commands to put his hands behind his back and an officer moved in to handcuff him. The K9 was then released. The bite duration was 24 seconds. Dastinot had visible scarring from the bite.
The court applied the Graham factors. The offenses that started all of this was apparently blocking the road way and disorderly conduct. Both are extremely low level offenses, so the first Graham factor is in Dastinot’s favor. There was no evidence that Dastinot made any threats or that there was any suspicion that he possessed a weapon (he was Terry frisked prior to things going south). However, LE said that Dastinot was trying to grab the taser. Dastinot denied this. However, there was evidence that Dastinot was on the ground on his stomach which would make it unreasonable to believe that he was trying to take the taser from LE.
Then Dastinot’s alleged resistance was analyzed. It was apparent from the verdict that the jury believed there was some resistance prior to Dastinot falling to the ground. Then, he was face down with two LE on top of him and being drive stunned. In addition, there was a brief period where LE got off Dastinot and prior to the K9 biting him. He did not try to get up or fight. This factor also weighed in Dastinot’s favor.
Because the jury reasonably could have determined that Dastinot was unarmed, not attempting to grab the taser, and was face down on the ground with two officers on top of him, the jury could have reasonably determined that Dastinot did not pose a significant or urgent threat to the officers or others when handler directed the officers to release him and then directed the K9 to bite-and-hold Dastinot. The second Graham factor, therefore, weighs in Plaintiff’s favor.
In addition, handler did not provide any warning before directing the K9 to bite-and-hold Plaintiff. Handler did not allow Dastinot an opportunity to comply or to signal his compliance before handler directed the K9 to bite. The jury could have reasonably interpreted Dastinot’s immediate compliance with handler’s order to put his hands behind his back as evidence of his intent to comply before handler directed the K9 to bite-and-hold.
In sum, the jury could have reasonably concluded that when handler arrived at the scene (1) no crime had been committed, (2) there was no basis to suspect that Dastinot was armed or dangerous, (3) although handler could reasonably conclude that Dastinot initially offered some resistance to the efforts of LE to arrest him, after he went to the ground, Dastinot was face down and not in a position to grab the taser, (4) there were two officers on Dastinot, (5) handler could see and hear that LE was using his taser on Dastinot in drive stun mode, and (6) because handler had time to direct the other officers to release Dastinot and get out of the way, which left Dastinot alone on the ground surrounded by officers, handler could have warned Dastinot before directing the K9 to bite-and-hold, which predictably resulted in a serious injury. Accordingly, the Court concluded that the jury determined that there was a constitutional violation because—drawing all reasonable inferences in favor of the verdict—the relevant factors weigh against handler and in favor of Dastinot’s excessive force claim.
Under the facts of this case, it would have been clear in 2014 to an objectively reasonable officer in handler’s position that his or her conduct violated the rule of law that required a warning before a K9 was deployed. The facts, when viewed most favorably to the verdict, include: (1) when handler was dispatched, no crime had been committed, (2) throughout the encounter, there was no basis to suspect that Dastinot was armed, (3) although handler was entitled to conclude that Dastinot initially offered some resistance to LE’s efforts to arrest him, after going to the ground, Dastinot was face down and not in a position to grab the taser, (4) there were two officers on Dastino when handler first observed Dastino, (5) there has never been an assertion that Dastino or the location presented a reasonable fear of ambush or a need to conceal handler’s location which would have been compromised by calling out a warning, and (6) handler had time to direct the other officers to release Dastinot and get out of the way before deploying the canine to bite Dastinot. A reasonable officer in handler’s position could not have perceived the kind of urgency or threat to the officers or the public which courts have recognized as sufficient to justify the use of a canine bite-and-hold without any warning or opportunity for the subject to comply voluntarily.
Handler claimed that a warning is only required in a deadly force situation. The court made short work of that and pointed out many cases that hold otherwise. The court held that even if it was concluded that a competent officer could have reasonably misinterpreted Dastinot’s movement when the officers were on top of him as some type of resistance (rather than the involuntary action of the body when being tased), the resistance was not such that it placed the officers in immediate danger. Moreover, the movement that was arguably susceptible to misinterpretation stopped when the officers got up and moved away from Dastinot, which was before handler directed the K9 to bite. Any urgency that handler might have reasonably mistakenly perceived had dissipated at the time he directed the K9 to bite.
In sum, viewing the facts most favorably to the jury’s verdict, the record supports a finding that a reasonable officer in handler’s situation would not have directed the K9 to bite-and-hold. In addition, the law was clearly established in 2014 that a reasonable officer could not deploy a 9 to bite-and-hold when a subject was not resisting or without warning and opportunity to comply when it was feasible to provide one, such as when the subject is unarmed, on the ground, and in the presence of multiple officers (i.e., where there is no urgency or substantial threat). Finally, an objectively reasonable officer in handler’s position would have known that his or her conduct violated that rule of law. Handler, therefore, is not entitled to qualified immunity.
Note: Here, handler arrives as back up and makes an assumption that Dastinot is resisting and deploys his K9 without much analysis. Once LE was off of Dastinot, the evidence showed that he did not take that opportunity to fight or try to flee. In spite of this, the K9 was deployed without warnings. This was found to be in violation of Dastinot’s civil rights. It is imperative for the handler to assess the scene for deployment based on the Graham factors and whether a warning would either be futile or would put LE in more danger. Neither situation existed here. This appears to be a case of acting before thinking and a handler does not have that luxury.
United States v. Bigbee (Minnesota 2023) 2023 U.S. Dist. LEXIS 2288
Reliability Foundation; Curtilage; Alert as Probable Cause
LE obtained an anticipatory search warrant to search Bigbee’s residence. The factual basis was that in the 10 days leading up to the warrant, DEA was surveilling Bigbee. Bigbee conducted counter surveillence measures. It was known to LE that Bigbee was already under indictment for drug trafficking in federal court, that he had an outstanding federal warrant and an extensive arrest and conviction history involving narcotics, weapons, assaults, fleeing police, burglary, arson, and other crimes. The previous investigation showed that Bigbee was using the residence in the search warrant for drug trafficking. In addition, there were stolen vehicles stored on the property. A previous warrant was issued that allowed LE to have a K9 sniff along the curtilage of Bigbee’s residence which resulted in an alert. That previous warrant identified the K9 as one which would be a “certified police narcotics detecting canine (K9) team recognized by the United States Police Canine Association.” (LE did not name a specific K9 in the warrant). This was the anticipatory part of the second warrant; once there was a positive alert, that triggered the second warrant into the residence.
LE arrived and arrested Bigbee on his federal warrant. They then deployed the K9 which alerted which triggered the search warrant for the house. Inside was methamphetamine among other evidence.
Bigbee complained that the first warrant authorizing a K9 to sniff the exterior of the residence was not valid because the K9’s training and certification was not listed. The court held that the warrant sufficiently established the K9’s reliability and even so, a good faith Leon exception would be found.
At the appellate level, Bigbee again argued that the search warrant application failed to establish a nexus between the residence and any illegal activity, and that LE failed to establish the K9’s reliability in the search warrant application.
The court held that LE’s application demonstrated that probable cause existed to search Bigbee’s residence. The affidavit detailed the surveillance avoidance techniques that Bigbee employed when driving home, his felony arrest warrant, the current investigation into his drug activities, and his extensive criminal history. As the Magistrate Judge noted, these facts indicated a fair probability that evidence of Bigbee’s drug trafficking would be found at the property.
The affidavit indicated that Bigbee avoided surveillance when returning to the residence, that stolen vehicles had previously been found there, and LE had reason to know that Bigbee utilized the residence to facilitate illegal activity. The search warrant affidavit provided the necessary nexus between the Elko residence and contraband.
As for the reliability foundation for the K9, though Bigbee argued to the contrary, there is no requirement that the search warrant application set forth details of the specific K9 that will be used and their extensive training history. Stating that the K9 utilized will be certified by the United States Police Canine Association was sufficient.
Further, the k9 positively alerted to the presence of illegal drugs, which was the condition precedent to law enforcement executing the search warrant. “Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time.” Here, the K9 positively alerted to the “odor of narcotics” at the door to the residence. This triggering condition established the necessary probable cause to search the residence.
Note: A great way to get your K9 onto the property and then having an anticipatory warrant ready to go was a very efficient way to get business done. Thinking outside the box is great.
Puskas v. Del. Cnty. (6th Cir. Ohio 2023) 2023 U.S. App. LEXIS 186
Excessive Force; K9 Warnings
Wife called 911 when Puskas was threatening her and she feared for her life. She told the 911 dispatcher that when Puskas came home from work he was “not normal,” was tearing up the house, and was “threatening [her] with guns and knives.” Wife stated that Puskas had “never acted like this before,” and explained that he had high blood pressure and depression and was on “new medication from the doctor” for “inflammatories.” Wife also indicated that there were lots of guns and knives in the house, and that Puskas “threatened to turn [her] into an ashtray.” He also cut open a window screen after she locked him out and he was tossing items across the front yard. During the call, Wife stated “I know what he’s going to do, he’s going to kill me.” Wife ran to the neighbors’ and hid behind a truck. She told the dispatcher that Puskas had “tremendous guns” in their house.
LE arrived to find stuff strewn about the yard and Puskas holding a rifle. However, he put it down before LE could get out of the cruiser. LE told him multiple times to put his hands up and get on the ground. Puskas continued walking back towards the house and pulled a shotgun out from behind a tree. LE took cover, losing his body cam in the process, and Puskas yelled, “You better run!” LE reported the presence of firearms. Puskas then dropped the shotgun.
More LE arrived and they tried to get Puskas to talk to them, telling him they could talk about it, and instructing him to come to them. Puskas refused. When Sergeant came on the scene, he called for a negotiator. A K9 team also rolled up. The policy that was relevant here said that handler shall, if possible, warn suspects that if they do not stop, a K9 will be released.
Handler joined the other officers in trying to persuade Puskas to engage with them. Handler told Puskas to “come to the sound of my voice, and we won’t have any problems,” and “come out to us and you won’t have any problems.” Handler was also preparing K9 “for an apprehension,” repeatedly giving K9 the bite command. Puskas ignored LE’s commands and continued to meander around the yard picking up various items off the ground, including a t-shirt. When told to drop the shirt, Puskas tossed it at the officers. After warning, “you’re gonna get bit,” Puskas started running back toward the house.
Handler released K9 shortly thereafter. K9 was unable to get a bite on Puskas. Wife maintains that LE never warned Puskas to surrender or that the K9 would be released, and that Puskas did not turn and run until after handler discharged K9. This was the basis of her first excessive force challenge. LE maintained that they did not violate the Fourth Amendment because handler did not release K9 until after Puskas started to run towards the house.
A review of the body cam revealed that as Puskas darted behind a tree, he picked up a gun case and despite all LE yelling at him to drop it, he drew it out of its case and he was shot by LE. He did not survive.
The court held that there was no excessive force in the release of the K9 because of the threat of firearms and because Puskas was running back toward the house. In addition, the court found that K9 was properly certified and trained, even though the K9 was only 18 months and this was his first field deployment.
Wife then alleges Puskas should have been tased instead of deploying the K9. The court refused to second guess the appropriate LE response here.
The court also went through a Graham analysis. The crime was severe and serious: threats to kill and access to weapons. Puskas resisted all commands and continually picked up firearms, pointing the last one at LE. LE doesn’t have to wait until a suspect points the gun at them. Wife also claimed that K9’s deployment made the situation worse because it caused Puskas to run away and try to arm himself for protection. However, the body cam footage refutes that; K9 was not deployed until Puskas was running toward the house.
Wife raises on appeal for the first time that LE were not sensitive to the fact that Puskas was mentally ill. Again, this is refuted by the evidence as it was clear that LE were attempting to reason with him after he dropped the rifle and before he picked up the shotgun. At that point, when he started running back to the house, all negotiation was over because LE could not let him out of their sight as he had access to weapons on the property given the 911 call and the previous brandishing of firearms.
LE was entitled to qualified immunity and therefore the Monell claims were dismissed as well.
Note: This was an unfortunate situation for all involved because Puskas was clearly having a mental crisis. However, that does not render him harmless; in fact, it can make someone more dangerous. In our system, there are not a lot of avenues for people with mental issues to obtain resources and so it often falls to LE to deal with the end result of the problem. Here, they tried negotiating but Puskas was just too entrenched in his mental illness to be reasonable. It was appropriate for LE to deploy the K9 and when that didn’t work, and deadly force was focused on LE, deadly force by LE was justified.
Walton v. Tunica Cnty. (Mississippi 2023) 2023 U.S. Dist. LEXIS 6
Excessive Force; Handler Control; Qualified Immunity; Monell Liability
Walton was arrested on warrants and handcuffed. LE said she was uncooperative, pulling away and refusing to walk. She also claimed to be pregnant. Handler was running his K9 around her car when Walton shifted her body weight and went to the ground along with the other arresting officer. At that point, K9 turned and attacked Walton. It was unclear whether there was an order for K9 to attack. It was also unclear how long the K9 was on the bite, but long enough for a supervisor to yell at the handler to release the K9.
The present issue for this court is not whether handler negligently decided to drop the leash on his dog during his search of Walton’s vehicle, but, rather, whether he committed a willful Fourth Amendment seizure of Walton by ordering his K9 to attack. While it may be true that Walton lacks substantial direct evidence that handler ordered his K9 to attack, this court believed that jurors could reasonably infer that such a command was given based on 1) handler’s ultimate responsibility to control his K9 and 2) their disbelief of his explanations regarding how he came to lose such control. As to the second point, this court believed that the fact that handler cited, as the reason for his actions, his own idiosyncratic practices which were questioned even by his fellow police officer, might reasonably lead jurors to question whether his version of events actually happened. This is particularly true considering that, once again, Tunica County did not equip him with a body cam which likely would have provided definitive proof regarding his actions. Since these questions remain, this is a triable issue of fact for the jury to decide.
A qualified immunity claim for failure to intervene by bystanding LE was granted. Officers at the scene were in a quandry as to whether to intervene would help or letting the handler do it would be more effective. Given the poorly pleaded action in the complaint, qualified immunity was granted for this bystander officer. In addition, a failure to provide medical care was also dismissed as the pleading in the complaint was poor. Also, the evidence showed she was given (or offered) appropriate medical treatment immediately.
Walton also wanted the municipal agency held liable for the K9 bite. Under Monell, this is a high standard to meet. A municipality can be held liable under § 1983 civil rights action only if a municipal “official policy or custom” caused the deprivation of a constitutional right. Here, there was no evidence that the actions that day were in any way taken pursuant to any official policy or custom. This cause of action was also dismissed.
State claims under the same theories were dismissed as well.
Note: The idiosyncratic practices the court referred to were testified to by handler. He testified that once the K9 alerted (“posed” was the word the handler used), he would put the leash on the ground and take pictures of the K9 “in pose” next to the vehicle K9 alerted on. This doesn’t seem smart; letting go of the leash creates an opportunity for a K9 to start making his own choices, which is apparently what happened here. Body cams would have been super helpful here; the bite and the duration were not filmed by any officer at the scene.