JANUARY 2021 UPDATE FOR MEYER’S K9 LAW (Volume 2, No. 1)
[ View Archives ]
Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from December 2020. (A caution here: some cases are unpublished (Unpub.) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)
If you are new to the website, thank you for becoming a member! Please feel free to browse through the previous updates. Each update has not only a review of the PSD relevant cases for the month, but often has an article that explores a specific issue in more depth. If you would like me to address a particular issue, please feel free to email, text or call me.
Collective Knowledge Doctrine and Good Faith Exception
Instead of an article this month, I wanted to highlight the collective knowledge doctrine as well as the good faith exception as those two concepts came up often this month.
The collective knowledge doctrine is well explained in U.S. v. Balser (New Hampshire 2020) 2020 U.S. Dist. LEXIS 239177 (see synopsis below). “When an officer with information amounting to probable cause directs an officer who lacks that knowledge to make an arrest, courts may impute the directing officer’s knowledge to the acting officer.” Balser, supra. The 11th Circuit has divided the doctrine into two categories: horizontal and vertical. In a horizontal case, a number of individual law enforcement officers have pieces of the probable cause puzzle, but no single officer possesses information sufficient for probable cause. In a vertical case, one officer has probable cause and instructs another officer to act. Jurisdictions are split on how much information must be relayed to the acting officer in a vertical case. In the 6th, 7th and 8th Circuits, the doctrine applies only where the directing officer shares some underlying facts with the acting officer. The 9th Circuit does not require any information to be shared. Rather, the 9th applies the doctrine where the directing officer has probable cause and issues an order or request to the acting officer. The 1st Circuit appeals to follow the 9th. Make sure you know what Circuit you are in and confer with your prosecuting agency to understand what your jurisdiction requires. A good general rule of thumb is the more information relayed to the officer detaining or arresting, the better.
The good faith exception was also mentioned in several of this month’s cases. Evidence seized pursuant to a search warrant will not be suppressed even if the warrant was defective so long as the officers acted in reasonable and objective good faith in relying upon the warrant and serving it. (See U.S. v. Leon (1984) 468 U.S. 897; Massachusetts v. Sheppard (1984) 468 U.S. 981.) The exclusionary rule (if evidence obtained in violation of the constitution, it must be excluded) applies to create a deterrent effect on LE. However, the Supreme Court recognized that there are situations in which exclusion would not have a deterrent effect and that is when LE acted in good faith. In this situation, the Supreme Court has held that the evidence will not be excluded. “[S]uppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Leon, supra, at 918. “[S]uppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Supra, at 926.
The California courts have grappled with the good faith exception frequently. People v. Macabeo (2016) 1 Cal.5th 1206, 1219- 1223, has a good history of the Good Faith exception to the exclusionary rule. Macabeo was detained after he ran a stop sign on his bike. During that detention, he was questioned, a Terry frisk was performed and his cell phone was searched without a warrant. LE did not confirm Macabeo’s probationary status prior to the search (later it was determined that Macabeo was off probation). LE ultimately found child porn on the phone. The court concluded that the search of the cell phone was unconstitutional because no exceptions existed for the search (exigent circumstances, for example). The court then turned to whether a good faith exception could apply. They found that the officers should have known that a warrant was required for a cell phone and that LE did not act out of excusable negligence or because of a newly enacted law that was confusing or complex. Therefore, the court threw out the evidence that came from the search of the cell phone.
Looking at these two cases, it appears clear that the courts will tend toward exclusion given the political climate of the day. The good faith exception will be reserved for those situations where there was a good faith mistake or action that was not deliberate or malicious. It’s always good to err on the side of getting a warrant for a search (unless you clearly have an exception) because the existence of the warrant then shifts the burden of proof to the defense to show the warrant was issued without probable cause.
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. It is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)
INDEX FOR REVIEWED CASES FROM DECEMBER 2020
Abney v. Craig (Michigan 2020) 2020 U.S. Dist. LEXIS 238350 – Traffic Stop; Marijuana Odor as Probable Cause
Bunnell v. State (Indiana 2020) 2020 Ind. App. LEXIS 538 – Foundation for Expert Testimony
Collik v. Pohlabel (Ohio 2020) 2020 U.S. Dist. LEXIS 227319 – Traffic Stop; Alert as Probable Cause; Probable Cause for Containers and Compartments
Collins v. Commonwealth (Kentucky 2020) 2020 Ky. App. LEXIS 798 – Collective Knowledge Doctrine; Traffic Stop; Prolonged Detention
Heavel v. State (Maryland 2020) 2020 Md. App. (Unpub.) LEXIS 1205 –Traffic Stop; Odor of Marijuana as Probable Cause
Hyer v. City & Cty. of Honolulu (Hawaii 2020) 2020 U.S. Dist. LEXIS 223621 – Qualified Immunity; Excessive Force; Monell Liability
In the Interest of D.W. (Pennsylvania 2020) 2020 Pa. Super. LEXIS 3991 – Smell of Marijuana; Consensual Encounter; Reasonable Suspicion
Penaloza v. City of Rialto Penaloza v. City of Rialto (California 2020) 2020 U.S. App. LEXIS 38050 – Excessive Force; Qualified Immunity; Bystander Liability
People v. Hall People v. Hall (California 2020) 57 Cal. App. 5th 946 – Smell of Marijuana as Probable Cause; Open Container of Marijuana
People v. Nevins People v. Nevins (California 2020) 2020 Cal. App. Unpub. LEXIS 8307 – Smell of Marijuana as Probable Cause; Training/Experience Foundation; Good Faith Exception
Reyes v. Colclough Reyes v. Colclough (Arizona 2020) 2020 U.S. Dist. LEXIS 228925 – Excessive Force; Qualified Immunity
Ross v. City of Helena-West Helena Ross v. City of Helena-West Helena (Arkansas 2020) 2020 U.S. Dist. 223341 – Odor of Marijuana as Reasonable Suspicion; Excessive Force; Qualified Immunity
State v. Bolme (North Dakota 2020) 2020 N.D. LEXIS 258 – Traffic Stop; Smell of Marijuana as Probable Cause
State v. (Minnesota 2020) 2020 Minn. App. Unpub. LEXIS 936 – Alert as Probable Cause; Reliability Foundation; Sniff as a Search (erroneously)
State v. Letts (Ohio 2020) 2020-Ohio-6643 – Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention; Reasonable Suspicion
U.S. v. Bailey U.S. v. Bailey (North Carolina 2020) 2020 U.S. Dist. LEXIS 233779 – Plain View; Odor of Marijuana as Probable Cause
U.S. v. Balser (New Hampshire 2020) 2020 U.S. Dist. LEXIS 239177 – Collective Knowledge Doctrine
U.S. v. Barnes (Georgia 2020) 2020 U.S. Dist. LEXIS 237633 – Traffic Stop; Prolonged Detention
U.S. v. Gonzalez-Gardea (Nebraska 2020) 2020 U.S. Dist. LEXIS 237158 – Traffic Stop; Prolonged Detention; PSD Entering Vehicle; Reasonable Suspicion
U.S. v. Humphries (Pennsylvania 2020) 2020 U.S. Dist. LEXIS 225165 – Traffic Stop; Odor of Marijuana as Probable Cause; Reliability Foundation; Good Faith Doctrine
U.S. v. Hussein (Minnesota 2020) 2020 U.S. Dist. LEXIS 234205 – Alert as Probable Cause; Good Faith Doctrine
U.S. v. Morris (Georgia 2020) 2020 U.S. Dist. LEXIS 240421 – Traffic Stop; Reasonable Suspicion; Collective Knowledge Doctrine
U.S. v. Neal (Arkansas 2020) 2020 U.S. Dist. LEXIS 237144 – Traffic Stop; Marijuana as Probable Cause for Search
U.S. v. Roberts (Missouri 2020) 2020 U.S. Dist. LEXIS 236141 – Collective Knowledge Doctrine; Reasonable Suspicion for Detention; Alert as Probable Cause
U.S. v. Registe (Virgin Islands 2020) 2020 U.S. App. LEXIS 38794 (Not precedent as opinion is not by the full appellate court) – Odor of Marijuana as Probable Cause
U.S. v. Schneiders (Iowa November 2020) 2020 U.S. Dist. LEXIS 232038 – Probable Cause for Search of a Person; Collective Knowledge Doctrine
U.S. v. Schneiders (Iowa December 2020) 2020 U.S. Dist. LEXIS 231819 – Same case as above; Probable Cause to Search Person
Varner v. Roane (Virginia 2020) 2020 U.S. App. LEXIS 37665 – Reliability Foundation; Consent
REVIEWED CASES FROM DECEMBER 2020
Abney v. Craig (Michigan 2020) 2020 U.S. Dist. LEXIS 238350
Traffic Stop; Marijuana Odor as Probable Cause
Almost 3 years prior to the filing of this lawsuit, LE pulled subject over, handcuffing him and ultimately letting him go without charges. The reason for the stop was subject blew past LE at a high rate of speed and almost hit the cruiser. Subject was armed with visible knives. LE could also smell marijuana. Subject was removed from the vehicle, searched and placed in handcuffs. LE then searched subject for weapons and the vehicle for contraband. Nothing was found. Subject claimed that he swerved to avoid a pothole, but denied anything else.
Subject’s claims were that LE violated his Fourth Amendments rights by seizing and searching him and that he was subjected to excessive force because the handcuffs were too tight. The court held that LE had reasonable suspicion to justify the traffic stop and, even if LE did not actually have reasonable suspicion, LE had qualified immunity because even if LE made a mistake in pulling subject over for reckless driving, it was a reasonable one (especially because subject admitted the swerving). The court then addressed the smell of marijuana issue. First, it held that subject failed to plead evidence that would create a genuine dispute that LE did not smell marijuana. In addition, at the time of the stop, Michigan had not yet legalized recreation use of marijuana and subject did not prove that he had a medical need for it. Finally, the court addressed the handcuffing issue, holding that subject did not present unequivocal evidence that he was not armed (LE saw knives, so a Terry frisk was lawful). In addition, subject had to prove that 1) the handcuffs were too tight, 2) he complained about it, and 3) he actually suffered injury. He did not provide evidence of any of those things.
Note: Michigan has now legalized recreational marijuana so the legality of the car search may be an issue. Also, the court held that LE was entitled to qualified immunity because if LE had made a mistake in believing subject was driving recklessly or under the influence, it was a reasonable mistake. The court probably didn’t have to even go there; a reasonable mistake does not vitiate reasonable suspicion. The court presumable did so because they were tired of this litigant dragging the process out and wanted to shut him down for good.
Bunnell v. State (Indiana 2020) 2020 Ind. App. LEXIS 538
Foundation for Expert Testimony
LE responded to a request for a well-being check on a possible DV victim. LE knocked on the door of the house and on the RV parked outside without success. However, in the process, LE smelled raw marijuana coming from the house. Victim contacted LE to say she was safe at a shelter. LE then sought a search warrant for the house, citing as probable cause the fact that two LE officers smelled marijuana. Contraband was found inside, so a rollover warrant was issued on the RV, where additional evidence was found.
Subject filed a motion to suppress claiming that although two officers swore they smelled raw marijuana coming from the house, the affidavit for the search warrant for the house did not indicate how the officers knew the smell was marijuana (there was no information of specific training or experience that would let the magistrate know that the officers had the requisite experience to recognized the smell of marijuana, just a blanket statement of “based on training and experience). In Johnson v. United States (1948) 333 U.S. 10, the U.S. Supreme court held that two factors must be met for a court to conclude the presence of odors; 1) the issuing magistrate finds the affiant qualified to know the odor and 2) the odor is one sufficiently distinctive to identify a forbidden substance. Here the first factor was missing. There was no information in the affidavit that the officers who claimed to smell marijuana had any specific training and/or experience to determine that the smell was actually marijuana. Here, since the only thing supporting probable cause in the warrant was the smell of marijuana, the affidavit must include some information regarding the detecting officers’ relevant qualifications, experience, or training in identifying and distinguishing the odor. Since this warrant lacked that information, the search warrant should not have been issued.
Note: I can pretty much guess that the “training and experience” phrase worked out fine with the magistrates in this jurisdiction until a defense attorney pointed out the lack. The good news here is that this is fixable; pretty much every LE officer (really, any American) has the training and experience to identify marijuana by smell. A simple one or two sentence statement that you have smelled marijuana in the field on X number of occasions and confirmed by seizing marijuana that the smell was indeed marijuana would suffice.
Collik v. Pohlabel (Ohio 2020) 2020 U.S. Dist. LEXIS 227319
Traffic Stop; Alert as Probable Cause; Probable Cause for Containers and Compartments
During a traffic stop, LE called for a PSD to sniff the vehicle. PSD alerted and car was searched, including the trunk and closed containers in the trunk. Subject complained in his complaint that his civil rights were violated when LE searched the vehicle because the PSD only alerted on the passenger compartment of the vehicle, not the trunk. Subject also pled in the alternative that the PSD did not alert on the vehicle at all. The court held that this dispute in the evidence was enough to allow the case to proceed. However, the court did recognize that any alert by an appropriately trained PSD is probable cause to search the entire vehicle including any containers that could contain controlled substances.
Note: While at first blush this case seems to be a defeat for LE, it really is only stating that because there is a conflict in the evidence, the case cannot be dismissed at this early stage. However, the court confirms the law as we know it to exist; an alert from a properly trained and reliable PSD allows for a warrantless search of a vehicle including compartments and containers that could contain controlled substances.
Collins v. Commonwealth (Kentucky 2020) 2020 Ky. App. LEXIS 798
Collective Knowledge Doctrine; Traffic Stop; Prolonged Detention
LE stopped a vehicle that was suspected of involvement in drug trafficking pursuant to two anonymous tipsters. These sources had similar information. When the vehicle was observed, much of the information given was found to be true (the tipsters predicted accurately future behavior of the subject). At the time of the stop, LE radioed for a PSD unit to respond. As LE was filling out the citation, the PSD team arrived 26 minutes after the stop. PSD alerted to the vehicle. Subject complained that the PSD alert prolonged the detention impermissibly.
The court held that LE had additional reasonable suspicion to investigate drug crimes at the time of the stop. Basically, the court held that there was enough detail in the two tips to show a sufficient reliability of the information to provide reasonable suspicion to investigate possible drug crimes. In addition, the officer making the stop was allowed to use the collective knowledge that this vehicle had been seen recently making frequent and brief stops at a known drugs house.
Note: Good use of information both from sources and from previous police work. Putting the two types of information together made for reasonable suspicion beyond that of the traffic stop.
Heavel v. State (Maryland 2020) 2020 Md. App. (Unpub.) LEXIS 1205
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for moving violations. When LE approached, they smelled marijuana. When passenger directed to exit the vehicle, he was asked if he had any marijuana. He replied he had a bag of marijuana in his pants pocket and a couple of joints in the other pocket. Passenger showed LE a joint. Total marijuana possessed was around 3 grams. However, LE also located cocaine along with the marijuana. The vehicle had an additional 10+ grams of marijuana. The driver was cited for possession of less than 10 grams of marijuana and released (possession of 10 grams or less is a civil offense). Passenger arrested and charged with cocaine possession.
Passenger claimed that the search was invalid because there was not probable cause to arrest based on the smell of marijuana and one joint. Passenger also claimed that it was not reasonable for LE to assume he was in possession of more than 10 grams of marijuana even though he told LE that he had a baggie and a couple of joints in his pockets. In a previous case, the court held that the smell of marijuana without more does not provide probable cause to arrest and therefore LE cannot search pursuant to arrest (Lewis v. State (2020) 470 Md. 1 and Pacheco v. State (2019) 465 Md. 311). The court held that Lewis and Pacheco control here; LE did not have any information that indicated passenger had more than 10 grams of marijuana, therefore the arrest and search was invalid.
Note: I would argue that this court is now splitting hairs to a ludicrous level. The State argued that when the passenger told LE that he had a baggie of marijuana in his pants pocket, it was reasonable to assume that passenger could have possessed more than 10 grams. However, the court followed the pattern we see emerging in other jurisdictions that have legalized/decriminalized marijuana; unless LE can prove possession of more than the legal amount of marijuana prior to the search, LE will not have probable cause to search.
Hyer v. City and Cty. of Honolulu (Hawaii 2020) 2020 U.S. Dist. LEXIS 223621
Qualified Immunity; Excessive Force; Monell Liability
After being called to a residence for a second time for subject’s bizarre behavior (mentally ill), LE consulted the police psychologist who instructed LE to take subject to a pysch facility for evaluation. A seven-hour standoff ensued. SWAT was involved. Facts are sketchy in the pleadings, but LE used a bullhorn to ask subject to leave his residence. Finally, a handler deployed his PSD into the residence. Subject stabbed the PSD and LE fatally shot subject. Everyone involved sued. This motion to dismiss is filed by the handler, Silva.
The court indicated that the plaintiff (in this case, subject’s family and estate) must allege sufficient facts, that if true, would allow the court to draw the reasonable inference that the defendant (Silva) is liable for the misconduct alleged. Here, Silva claimed qualified immunity but the court said that this finding would be premature as the record was insufficiently developed (court needed more information). On the state law claim (Hawaii requires the plaintiff to show actual malice on the part of the officer to recover damages under state law), the court held that the complaint did not allege sufficient facts to sustain that claim.
On the Monell liability issue, the court held that the plaintiff inadequately pleaded this charge and therefore dismissed it with leave to try again.
Note: The plaintiff’s attorney failed to adequately plead most of the allegations against LE in this unfortunate case. The court also indicated that summary judgment for Silva could be in the offing. It will be interesting to see if this case makes it back to the appellate court.
In the Interest of D.W. (Pennsylvania 2020) 2020 Pa. Super. LEXIS 3991
Smell of Marijuana; Consensual Encounter; Reasonable Suspicion
Plain clothed LE operating an unmarked vehicle spotted a Dodge Magnum parked in a parking lot with five occupants and another person standing outside of the Dodge. As LE got closer, the individual outside the Dodge spotted LE and appeared to be telling the occupants of LE’s proximity. The occupants started frantically reaching around inside the vehicle and based on training and experience, LE believed they were trying to hide weapons or contraband. At that point, LE got out of their vehicle, showed their badges and identified themselves as police. A backseat passenger was holding a blunt and there was an overwhelming smell of marijuana emanating from the Dodge. LE talked with driver and noticed that he continued to reach for his waist area even though he was instructed (along with everyone else) to keep his hands in view. LE asked driver to step out and LE saw a large, unnatural bulge on his right side and a Terry frisk revealed a handgun.
At the motion to suppress, three of the occupants claimed that LE approached the vehicle with guns drawn and pointed at them, prior to the discovery of the passenger in possession of a blunt and the smell of marijuana. Therefore, the search was unlawful because driver was detained prior to LE having reasonable suspicion to do so. The three occupant witnesses also claimed they were patted down but couldn’t agree on how many times. They also couldn’t agree on the timeline regarding the frisk of the driver, leading the court to disbelieve their account.
The court held that this was a consensual encounter until the point where LE told the occupants to show their hands. Therefore, until that point, LE did not need any level of suspicion. Once the order to show hands was given, the encounter turned into a detention. This was after LE saw a blunt, smelled marijuana and observed driver reaching toward his waistband several times. Therefore, LE has reasonable suspicion to perform a Terry frisk.
Note: Nothing really new here, but a good reminder to accurately record the timeline of events so the court can easily find that LE made observations from the viewpoint of a consensual encounter that transformed, with reasonable suspicion, into a lawful detention.
McElree v. City of Cedar Rapids (Iowa 2020) 2020 U.S. App. LEXIS 40217
Traffic Stop; Reasonable Suspicion; Excessive Force
During surveillance, LE saw individuals who were believed to be involved in methamphetamine manufacturing were loitering near a pick up truck in a Walgreen’s parking lot. One of them got out of the truck and went into Walgreen’s and purchased pseudoephedrine. A few minutes later, a different individual got out of the truck and went across the street and made a similar purchase. A third and then purchase was made at Walgreen’s by different persons associated with the truck. LE was able to monitor such sales in real time via a computer program that tracked such sales. Everyone came back to the truck and LE could see a flurry of movement and the light from a flashlight inside the truck. The truck then left Walgreen’s, dropped off one of the passengers and continued to drive. LE decided to pull the truck over because they believed it contained evidence of methamphetamine manufacturing. A PSD was called to respond as well. Three of the occupants were removed and searched. One had a knife, a meth pipe and pills. Subject was questioned through the window of the truck and was told that he was going to be searched. Subject repeatedly reached toward his own waist while an officer removed a knife on a lanyard from around subject’s neck. LE then spotted a shotgun in the cab of the truck. LE drew their firearms and told subject to get out of the truck. He refused. He then changed his mind, got out of the truck and started to move away from LE. LE tried to grab him, but lost the grip and subject starting running. While he was running, he was holding the front of his pants. PSD was deployed and latched onto subject’s leg. Subject fell, twisted and drew a firearm from his pants. LE yelled, “Gun!” LE believed that subject shot at him because he heard a clap and saw a flash of light. LE also saw an officer fall to the ground (he apparently slipped). These two officers then fired repeatedly at subject, killing him. The autopsy revealed that subject had meth in his system and his handgun was loaded but had not been fired. Subject’s family sued.
The court first analyzed whether the detention was legal and held that reasonable suspicion was supported by 1) two to three separate pseudoephedrine purchases in a 20 minute span; 2) known methamphetamine manufacturers associated with the truck and 3) suspicious levels of activity in and around the truck. Subject’s family claimed that reasonable suspicion was not founded because LE could not be sure that subject was one of the persons who purchased pseudoephedrine, but the court stated that “reasonable suspicion does not require certainty, including in the identification context.” In addition, the court recognized that LE suspicions were not developed in isolation; combined with all the evidence LE had, reasonable suspicion existed. Also, even though the purchases were legal, they were still part of the reasonable suspicion amassed by LE.
The court then addressed LE’s attempt to detain subject. Since the stop was lawful, LE was able to take any measures that are reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop. This includes instructing occupants to exit the vehicle, prevent passengers from leaving the scene and increase restraint proportionate to uncooperative behavior during an investigative detention. Here, LE knew subject was probably armed because they had removed a knife from his neck and there was a gun in the vehicle. Subject’s behavior in refusing to exit and then attempting to flee supported restraining him. As he was fleeing, he struggled with one officer and ran off, so handler’s decision to release PSD was not unreasonable. The court then addressed the deadly force of gunfire, holding that given all the circumstances and applying a Graham v. Connor standard, LE acted reasonably. They also held that the failure to give any warning of use of force was reasonable under the circumstances.
Note: This was a well documented use of force which clearly led to an early and appropriate decision that the civil case was not viable. It shows that detail is important; the facts as known to the officers on scene was that subject fired first; later review showed that subject never fired. However, because of the meticulous reporting of facts, the court was able to make the determination that officers reasonably believed they were in danger of deadly force by subject, therefore making the use of the PSD as well as gun fire to subdue subject was reasonable and therefore lawful.
Penaloza v. City of Rialto (California 2020) 2020 U.S. App. LEXIS 38050
Excessive Force; Qualified Immunity; Bystander Liability
Subject was a passenger in a vehicle pulled over for a traffic violation. The driver attempted to flee but when he stopped, passenger got out of the car and knelt on the ground. Handler approached vehicle to get to driver, planning on sending PSD into the vehicle to apprehend driver. However, LE feared driver had a gun so handler began shooting at the driver (still in the vehicle) and released PSD at the same time who bit passenger for about 28 seconds which resulted in serious damage to her leg.
Because this was a summary judgement motion, court had to accept passenger’s claim that handler intentionally pushed PSD toward her and the PSD “target locked on her” (handler said he never intended for PSD to bite passenger). Since passenger was no threat to LE and was not attempting to flee or resist, the handler was not entitled to qualified immunity (jury will have to decide). The court then turned to the other LE officer on scene. While the court held that bystanding officers have a duty to intervene when other LE violates a citizen’s constitutional rights, that bystander is only required to do so when he/she has a realistic opportunity to intercede. See Cunningham v. Gates (9th Cir. 2000) 229 F.3d 1271, 1289-90. Here, since prior case law did not define a “realistic opportunity,” the bystander officer was entitled to qualified immunity.
Note: The handler will have to proceed on the facts of the case which are not well fleshed out here since this was a summary judgement motion. But the bystander officer is out of the case. This seems appropriate, given that the bite only lasted 28 seconds, there was gunfire going on and I’m sure additional chaos and confusion. The agency is going to be on the hook for the actual damages (medical costs) but the fight is about the additional money that a constitutional violation would bring.
People v. Hall (California 2020) 57 Cal. App. 5th 946
Smell of Marijuana as Probable Cause; Open Container of Marijuana
During a valid traffic stop, LE searched the vehicle after observing a baggie of a not unlawful amount of marijuana in the vehicle. LE did not believe or have evidence that driver was under the influence of marijuana. The court looked to previous cases like People v. Lee (California 2019) 40 Cal.App.4th 853 (lawful possession of marijuana does not provide probable cause to search a vehicle). After establishing that, the court then had to determine if there was any evidence of a crime which would otherwise justify a search. LE had already stated that driver was not under the influence, leaving the open container argument as the only justification. Under H&S 11362.3, the language specifically states that possession an “open container” by a driver is prohibited. The court interpreted this to mean that as long as the container was closed, but not sealed (like a liquor bottle needs to be), the marijuana was legally possessed. Since no evidence of how the package was or was not sealed was presented, the court granted the motion to suppress.
Note: Interestingly, the driver had a “green leafy substance” broken up in his lap. While the baggie was closed enough for the court, the fact that the driver had marijuana all over his lap was circumstantial evidence that the container was open at some point during the driving (the substance fell off during the investigation, supporting this conclusion). The prosecution may not have wanted to push the case this far as it was only circumstantial evidence and it didn’t appear that LE preserved the particles in evidence. The court only concentrated on whether the marijuana in driver’s lap in addition to the other visible marijuana was a legal amount.
People v. Nevins (California 2020) 2020 Cal. App. Unpub. LEXIS 8307
Smell of Marijuana as Probable Cause; Training/Experience Foundation; Good Faith Exception
LE received an anonymous tip that a person was growing marijuana at an address. LE went to the location and was able to smell marijuana from the driveway and from across the street. LE also noticed items that were consistent with criminal activity; security cameras, first floor windows covered but second floor windows open, and electricity consumption was over 15 times greater than for similar residences in the area. In addition, the property was in close proximity to a school and LE was concerned that the greater fire danger of a grow house may impact that area. Affiant officer outlined his training and experience (participation in numerous narcotics investigations, including marijuana) and a search warrant issued for the house. Over 300 plants, cocaine, equipment for growing and selling and over $2000 in cash was found.
Subject property owner filed a motion to suppress claiming that marijuana was now legal in California and LE did not have any way to determine there was illegal possession of marijuana. Property owner was charged with H&S 11366, maintaining a place for the unlawful sale, giving away or use of a controlled substance which is still a felony. Property owner then pled to 11366 and filed an appeal of the denial of his motion to suppress.
The appellate court considered the impact of Proposition 64 (legalization of recreational marijuana) on this case. Property owner claimed that since neither the tipster or LE was able to definitively state that the odor came from more than 6 plants (the legal amount of plants allowed). The court applied the legal standard, stating that LE did not need to know property owner was growing more than six plants; he only needed to believe, based on the information he had, it was fairly probable cultivation at the residence exceeded the limited permitted by Prop. 64. The issuing magistrate therefore only had to have substantial basis for concluding a fair probability existed that the search would uncover wrongdoing. Here, that affiant’s training and experience, coupled with the strong odor and the unusually high electricity usage provided ample grounds for the magistrate to issue the warrant. In any event, the affiant indicated he had probable cause to search for evidence of a violation of 11366 in addition to possession and possession for sale of marijuana. Finally, the court held that even if this warrant were invalid, LE reasonably relied in good faith on the warrant under U.S. v. Leon (1984) 468 U.S. 897.
Note: Just because the handler wasn’t dismissed out at this stage doesn’t mean he won’t prevail in the next stages of the lawsuit. The LE version and the plaintiff version of what happened are basically diametrically opposed, so it will come down to a credibility contest. There was no mention of whether there was any body cam footage; this is another instance where it would be to the advantage of LE to have it to support their assertions.
Reyes v. Colclough (Arizona 2020) 2020 U.S. Dist. LEXIS 228925
Excessive Force; Qualified Immunity
Subject drove a vehicle he knew to be stolen to his mother’s house. He knew there was a warrant out for his arrest because he violated the conditions of his parole. He had recently smoked methamphetamine, taken five Xanax and smoked marijuana. LE staged at the mother’s house to serve the warrant. A PSD team was present. Subject left his mother’s house armed with a loaded AK-47 even though he was prohibited by his criminal record. As he was leaving, he pointed the gun at a white van and said, “What the fuck are you doing her motherfucker?” before noticing the van was empty. However, it was broadcast that subject had pointed a gun at LE (whether the white van belonged to LE or had LE in it is unclear). All resources were scrambled at that point in an attempt to apprehend subject. Subject was driving erratically and speeding and spotted the police helicopter. He pointed the rifle at the helicopter through the sunroof and shot approximately 10 times. Subject then crashed into a power pole, and carjacked a Buick with the rifle. Subject then led LE on a merry chase through neighborhoods, blowing through traffic control devices, speeding and driving erratically. Subject kept driving until he saw a police cruiser and an armored vehicle. LE Colclough was informed that subject was armed and had fired shots and pointed a gun at an officer. He joined the chase in time to see the Bear attempt a PIT, which was unsuccessful. Colclough believed at that point that subject was an immediate danger to LE and civilians in the area. Therefore, Colclough rammed subject head on with his cruiser, causing the air bags to deploy in both vehicles. Subject threw both hands in the air, but later admitted that he posed a danger to LE and civilians at the time of the crash and that the rifle was next to him with the barrel pointed at the dash of his vehicle. Colclough saw a large, black object being lifted by subject, and based on all the information he had at the time, he fired his service rifle at subject 6 times. The handler of the PSD team was present at the scene and heard over the radio that LE did not have a clear visual of subject (who had been wounded by the gunfire) and took up a position at the passenger side of subject’s vehicle. Subject obeyed a command to show his hands by pressing them against the driver’s side window, but then dropped a hand out of sight (he says to operate door handle). Non-lethal rounds were shot at the passenger side glass to break it. Subject opened the passenger door and remained laying across the passenger seat. Subject admitted that he was laying on top of the gun and had the ability to use it. Subject did not obey commands to push himself out of the vehicle through the passenger door (subject says his pants got stuck on the gear shift) so PSD was deployed to extract subject. No warning was given because handler did not want subject to use the gun against the PSD. PSD initially pulled off subject’s sweatshirt and re-engaged on his forearm. As subject was being extracted, PSD lost his bite as handler was pulling on his leash and re-engaged when handler allowed the leash to go slack. Subject was pulled from the vehicle and arrested. He was treated for gunshot fragment wounds and dog bite. In pretrial discovery, subject admitted that he shot at the helicopter knowing he could have harmed or killed someone; admitted he was holding the rifle when he carjacked the Buick; that he was intentionally fleeing the police; that he was driving recklessly and endangering people along his route.
LE in this case asserted qualified immunity. The court first considered whether the amount of force used was reasonable using the Graham v. Connor factors: 1) The crimes at issue were severe given the gun use and the recklessness of his conduct; 2) subject posed an immediate threat to LE and the community (although the subject argued that he had surrendered when he put his hands on the driver’s window, the court pointed out that since subject was armed – or reasonably suspected of being armed – a furtive movement might create an immediate threat. That was the case here when subject put one of his hands out of sight and LE (as well as subject) knew he has access to a gun; and 3) subject was actively and violently fleeing and resisting arrest. Therefore, the force used by the handler was objectively reasonable and did not constitute a constitutional violation. As for the second factor of qualified immunity, subject did not offer any authority that deploying a PSD in this situation was unconstitutional. Therefore, qualified immunity applied and the case was dismissed.
Note: The outcome of this case was pretty clear and the court had no problem finding the actions of LE to be objectively reasonable and that they were entitled to qualified immunity. It is a good example of how detailed LE reports need to be to counter all the nonsense the subject and his attorney are going to throw at the case. Because LE was able to counter all subject’s assertions with facts, they were able to get a good result early in the process.
Ross v. City of Helena-West Helena (Arkansas 2020) 2020 U.S. Dist. 223341
Odor of Marijuana as Reasonable Suspicion; Excessive Force; Qualified Immunity
During a traffic stop, LE smelled the odor of marijuana coming from the vehicle. Both occupants were asked to step out of the vehicle and were Terry frisked with negative results. The driver was detained for DUI after testing. Since it was raining, LE placed passenger in a cruiser with a PSD, telling him to lean forward away from the dog. The PSD then was able to get his snout around the barrier and bite the handcuffed passenger. Passenger was immediately removed and taken to the hospital and given prophylactic medication but no stitches. The hospital bill was paid by the police department. Passenger was later diagnosed with PTSD.
The police department determined that the handler violated department policy by leaving passenger in vehicle with PSD unsupervised. The handler was disciplined and stripped of his PSD duties.
Passenger sued handler and department. The court initially held that there was no genuine dispute that LE smelled marijuana, which meant that LE was supported by reasonable suspicion in the detention of the occupants. The court then analyzed the excessive force claim from the passenger for the PSD bite. The court stated that the Graham v. Connor factors all were in favor of the passenger. However, the court held in this case that the handler was entitled to qualified immunity because it was not clearly established that his conduct in placing passenger in vehicle with PSD was unconstitutional (there was no case on point). The court then addressed the complaints against the department/city and concluded that there was no facially unlawful city policy or custom and the passenger could not show some municipal action that demonstrated deliberate indifference to the consequences of the agency’s action (a high standard). The court held that both the handler and the agency were entitled to qualified immunity.
Note: This is one of those cases that will probably be pounced on by plaintiffs’ attorneys to show that qualified immunity is a bad concept. However, this clearly was not deliberate (although the fact that the handler told the passenger to “lean forward” and away from the dog is concerning), so the outcome was not surprising. Also, the department immediately made passenger whole in terms of medical and psychological treatment. I think it’s important to keep in mind that the reason excessive force claims are filed are for monetary damages above and beyond the actual injury inflicted by the PSD. Here, the injury was not terrible and the mechanism (dog wiggling through the barrier) was negligent at best. Therefore, the court is using qualified immunity to dismiss the case. While the opposite position (no qualified immunity) can be argued, the result would probably be that there was not much more damage inflicted than what was already paid for.
State v. Bolme (North Dakota 2020) 2020 N.D. LEXIS 258
Traffic Stop; Smell of Marijuana as Probable Cause
During a traffic stop for a cracked windshield, LE smelled the odor of raw marijuana coming from the vehicle. Based on the smell, LE searched the vehicle and discovered methamphetamine and paraphernalia.
The court discussed the validity of the stop at length (the issue was whether the crack obscured the driver’s view) and ultimately decided that the traffic stop was supported by reasonable suspicion. The court then turned to whether the smell of raw marijuana alone provided probable cause for the search of the vehicle. Even though penalties have been reduced for possession of marijuana, marijuana is still illegal in North Dakota (possession of 0.5 ounce is a criminal infraction). Therefore, the smell of marijuana in this case provided probable cause.
Note: North Dakota reduced penalties for marijuana but stopped short of decriminalizing it.
State v. Fenske (Minnesota 2020) 2020 Minn. App. Unpub. LEXIS 936
Alert as Probable Cause; Reliability Foundation; Sniff as a Search (erroneously)
LE responded to a homeowner reporting that a car with two occupants had been sitting outside her house for the last three hours. On scene, LE discovered that the vehicle plate was not on file. Both driver and passenger had freshly lit cigarettes. They claimed to be playing Pokemon Go, which did not make sense as that is a mobile game, not one to be played stationary in one spot. LE believed driver was a “tweaker” based on physical appearance (fidgety, skinny, etc.). Passenger was trying to hide something under his seat. Passenger was on probation for possession. LE then requested a PSD to the scene. PSD arrived and alerted on vehicle. LE then searched the vehicle locating methamphetamine, marijuana, a digital scale and a bill with white residue. Passenger told LE that he gave the bill to driver so she could snort methamphetamine. Passenger’s cell phones were seized and searched and it was clear that passenger was selling controlled substances.
Passenger challenged the sniff, saying LE did not have reasonable suspicion to conduct it. The court, instead of correctly applying the law and concluding that a sniff is not a search in this situation, found that the above facts presented enough reasonable suspicion to justify the sniff. Passenger then challenged the reliability of the PSD. There was testimony that the PSD had been working for about 5 years, was certified and trained to detect controlled substances. The handler also testified that he did not have any improper body language or give any improper signals that would lead the PSD into falsely alerting. On cross, the handler admitted that PSD had 5 to 10 false alerts, but passenger failed to identify any case law that supported the argument that false positive alerts make a PSD inherently unreliable. The court held that since the PSD was correct the majority of the time and the handler testified to PSD’s training and certification, the PSD alert properly provided probable cause to search the vehicle.
Note: This court talks about the PSD sniff as a search. This is legally not correct; a PSD sniff is not a search (see “Frequently Asked Questions” on this website for further support for this concept). It is important that LE not refer to a sniff as a search to make sure that the court doesn’t inadvertently use this language. A search implicates the Fourth Amendment; a sniff does not. Since a sniff is not a search, PSD can be deployed without reasonable suspicion or probable cause (as long as PSD is legally present). Even though the result was the same, the court did not have to go through the rabbit hole of finding reasonable suspicion; it wasn’t necessary. In a case with closer facts, this will be important.
State v. Letts (Ohio 2020) 2020-Ohio-6643
Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention; Reasonable Suspicion
Traffic stop for tinted windows. Vehicle stopped in the parking lot of a motel. Subject immediately got out of the vehicle and LE told him to hang on a minute. Subject got back in the vehicle. LE could smell burnt marijuana. Driver volunteered that he did not have a driver’s license. A third occupant was also contacted. All three gave LE their information and LE went back to his cruiser to check on the IDs. At that point, LE was a single officer. By the time LE finished verifying IDs and warrant checks, another LE arrived on scene. LE then asked subject to step out. Subject was Terry frisked pursuant to consent. Subject then began to remove items from his pocket, including a cigarette pack. LE said that he would conduct the search. LE then found a baggie of marijuana and brass knuckles. During an inventory search of the vehicle a digital scale was found. Subject consented to a search of the cigarette pack and LE found white powder which subject claimed was “cut”. Subject later claimed it could contain a small amount of fentanyl. Subject also confessed to possessing stolen property and buying and using a supplemental card. The window tint turned out to be legal.
The court held there was no prolonged detention. LE was continuously investigating up to the point of finding contraband on subject. In addition, the smell of burnt marijuana allowed LE to justifiably prolong the investigatory stop and that LE was sufficiently qualified to recognize the odor of marijuana.
Note: Ohio has only legalized marijuana for medical use. Recreational use is still illegal, although simple possession of up to 100g is a minor misdemeanor.
U.S. v. Bailey (North Carolina 2020) 2020 U.S. Dist. LEXIS 233779
Plain View; Odor of Marijuana as Probable Cause
LE responded to a call that caller’s friend was a female was being held against inside a home. Caller said that friend was texting her from inside the residence. Caller did not have the address but screen shotted the location and also provided information that a grey BMW was in the driveway. LE arrived and located residence; in plain view inside the BMW was body armor and several roaches. Subject responded to LE knocking on door. LE said they were there to do a welfare check. Subject said he needed to get dressed before letting LE in. At that point, LE heard a female scream from inside the residence. LE demanded entry and subject opened the door. LE could smell marijuana in the home. Female came out of a bedroom and talked to LE. LE talked to subject outside the residence. Subject denied causing any harm to female. Female said that subject became aggressive and grabbed her throat and made a physical motion that indicated he was going to hit her. Subject was detained and placed in handcuffs. Subject was shirtless, and asked if he could get a jacket. LE stepped inside the residence with subject as he retrieved his jacket. LE observed marijuana and ammunition in plain sight. LE then obtained a search warrant for the residence and the vehicle.
This court started off by stating that the Fourth Circuit has repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place. In addition, the court held that the brief entrance into the residence to retrieve a jacket was not a search. LE was only in the living room area and did not touch any item. Furthermore, LE left when requested. Under the plain view doctrine, the evidence seen during this entrance was properly before the court as part of the probable cause in the warrant. Motion to suppress was denied.
Note: Marijuana is still completely illegal in North Carolina.
U.S. v. Balser (New Hampshire 2020) 2020 U.S. Dist. LEXIS 239177
Collective Knowledge Doctrine
During a wiretap investigation, the DEA identified an address that was being used as a drug distribution point. In addition, they identified Balser as a customer who drove a white Hyundai. DEA determined that Balser confirmed with their target that Balser was coming tomorrow morning with the “usual plus sample.” There was then a discussion of what drugs in what amounts were to be brought. The next day, messages were intercepted where Balser indicated he was 30 minutes away and the target gave instructions to the drug house already identified earlier in the investigation. DEA monitored the location and saw Balser’s car pull and a man leave the car and enter the house with a backpack. DEA then intercepted a message from Balser that he was at the location and wanted to be buzzed into the building. Six minutes later, agents saw the man leave with the backpack. Agents asked that a local uniformed officer with a marked cruiser stop the vehicle. This local officer had worked with the DEA task force before and had stopped vehicles at their direction in the past. The agent told the local officer that the vehicle was a white four door and gave the officer the plate and that the car likely had drugs in it because the occupant had likely just completed a drug transaction based on information developed during a wiretap (which the local officer knew about). In addition, the agent gave the local officer the direction of travel and the interstate number. The agent further told the local officer that he wanted a “wall off stop” to protect the integrity of the ongoing DEA wiretap investigation. The local officer spotted the vehicle and stopped it for following too closely in rush hour traffic. During the stop, the local officer developed what he believed as probable cause to seize the vehicle: 1) Balser had not taken the most direct route from Massachusetts to Vermont; 2) he appeared nervous; 3) his cellphone rang repeatedly but he did not answer it; and 4) there was a small cotton ball on the driver’s side rear floorboard. The vehicle was then transported to the police station where a PSD alerted on it. A warrant based on the above information was issued for the vehicle and drugs were found.
The court held that under the collective knowledge doctrine the local officer had probable cause to search the vehicle. “When an officer with information amounting to probable cause directs an officer who lacks that knowledge to make an arrest, courts may impute the directing officer’s knowledge to the acting officer.” The 11th Circuit has divided the doctrine into two categories: horizontal and vertical. In a horizontal case, a number of individual law enforcement officers have pieces of the probable cause puzzle, but no single officer possesses information sufficient for probable cause. In a vertical case, one officer has probable cause and instructs another officer to act. Jurisdictions are split on how much information must be relayed to the acting officer in a vertical case. In the 6th, 7th and 8th Circuits, the doctrine applies only where the directing officer shares some underlying facts with the acting officer. The 9th Circuit does not require any information to be shared. Rather, the 9th applies the doctrine where the directing officer has probable cause and issues an order or request to the acting officer. The 1st Circuit appeals to follow the 9th. The relevant test here then is 1) whether DEA had probable cause to seize the vehicle and 2) if so, whether DEA’s directive to the local officer was sufficient to impute DEA’s probable cause. The court held that the intercepted messages gave DEA probable cause that the vehicle contained drugs. The court further held that the information given to the local officer was sufficient to satisfy the collective knowledge doctrine.
Note: Oddly, the court found the local officer unreliable but that the DEA agent was reliable and based its findings on the agent’s testimony. The right conclusion was drawn, but the court was unhappy about the minimal report from the local officer. Be sure that you document everything in your investigation and if there is information that needs to be protected (such as here to protect an ongoing investigation), then you can ask that the information not be disclosed until further order of the court.
U.S. v. Barnes (Georgia 2020) 2020 U.S. Dist. LEXIS 237633
Traffic Stop; Prolonged Detention
Traffic stop for failure to yield and speeding. It took subject 0.4 miles to stop driving at 30 mph. While this was happening, LE saw subject put something in the back seat. LE smelled the odor of marijuana when approaching the vehicle. LE obtained subject’s driver’s license and registration and asked if LE could look in the vehicle. Subject said, “I ain’t got a problem with you looking, but uh, I was trying to figure out why you’d want to look, sir, you pulled me over for, for speeding, sir.” There was an interruption of the conversation while LE answered his radio. Subject was making a call on his cell phone and LE asked if subject smoked marijuana and then if subject smoked marijuana in the vehicle. Subject denied both. Subject then admitted to being on probation. Subject was instructed to exit the vehicle and was Terry frisked. When asked, subject admitted to having marijuana in the vehicle. During the search, a firearm was found in a child’s car seat. Subject was a prohibited person and had waived his 4th Amendment rights to be on probation.
Subject conceded that the traffic stop was valid, but claimed it was impermissibly prolonged. The court held that probable cause existed to justify the vehicle search based on odor of marijuana. The court went on to state that even if probable cause had been lacking, subject had already waived his 4th Amendment rights to be placed on probation. The court, having justified the search under these two theories, declined to address whether subject actually consented.
Note: Georgia only allows possession of marijuana for medical purposes under limited conditions.
U.S. v. Gonzalez-Gardea (Nebraska 2020) 2020 U.S. Dist. LEXIS 237158
Traffic Stop; Prolonged Detention; PSD Entering Vehicle; Reasonable Suspicion
LE spotted a tow truck with a pick up truck in close proximity. The tow truck was hauling an Escalade. LE believed the vehicles were traveling together. As LE got closer, LE determined that the pick up was following a semi too closely. LE asked another officer to pull the pick up over (the first LE was trying to catch up to the tow truck). There were three occupants in the pick up; subject was a passenger. The driver said he didn’t have a license. The other passenger said the tow truck had their Escalade on it and they did not know the driver. The driver then rolled up his window. LE told him to lower it, which he did, but made a call on his cell and appeared to be talking to someone. LE asked driver to come back to the cruiser for a warning citation. LE struggled with confirming driver’s identity and whether there was a warrant for him (it was a restraining order). While this was happening, driver told LE that he was friends with the passenger in the tow truck and he was driving the pick up the Escalade had broken down. LE also had difficulty confirming the registration of the pick up. LE then tried to determine if either passenger had a valid license (to drive the pick up). During this time, it was discovered that driver and passenger information did not match. Subject denied possession of any contraband. When LE confronted the female passenger about the non-matching stories and that LE thought there was drug running going on, she started crying and said she didn’t want to be separated from her kids. LE then directed female to drive the pick up to a different location and detained the other passenger and the driver. They arrived at the scene where the tow truck and Escalade were.
Meanwhile, LE received information from a source that there would be a vehicle hauling 30 pounds of drugs on this highway. This officer pulled the tow truck over for signaling violation during a lane change. The stop was in a rest area. Thomas was the driver and Robles was the passenger. Robles was texting on his phone at the time of the stop. Thomas was instructed to go back to the cruiser with LE for a warning citation. Driver said that he was called out to haul an Escalade because its water pump went out just north of the Kansas border. It turned out that it would have been much cheaper to fix the water pump than to have the Escalade towed. LE thought that suspicious. Robles barely spoke to Thomas during the trip. Robles denied being the owner of the Escalade but said that the owner was one of the occupants in the pick up. Robles’ ID was found in the pick up. Robles told LE that he was in the pick up to watch the Escalade. However, based on statements from the occupants of the pick up, Robles came with the driver of the pick up prior to the Escalade being towed. At this point, a PSD team arrived and asked Thomas for permission to run the dog which was granted. The PSD team had some difficulty sniffing the Escalade given the high position on top of the tow truck. Thomas then lowered the Escalade to the ground and the PSD team was able to deploy around it. PSD alerted to the Escalade. Because of poor weather conditions, LE asked if Thomas could reload the Escalade and drive it to their shop about 2 miles away. Female passenger of the pick up finally admitted that she and her partner (subject) would retrieve contraband in her Escalade and drive it to Mexico. The Escalade had over 27 pounds of methamphetamine.
A motion to suppress was filed. First, subject claimed that the stop of the pick up was not based on reasonable suspicion. The court easily dispatched that argument, holding that LE believed they observed a traffic violation, so the stop was valid. As to the stop of the tow truck, again the court stated that the stop of the tow truck was valid based on the traffic violations observed. Subject then complained about prolonged detention. Given the many tasks that were needed to complete this traffic stop, the stop was not unduly prolonged. In addition, LE developed additional probable cause regarding additional crimes, which expanded the time for LE to continue to investigate, at least until the PSD was deployed and alerted.
Note: This was a crazy fact pattern and ultimately, a fairly simple and straightforward denial of the motion to suppress. Good police work in noting that there was probably some connection between the vehicles and doggedly pursuing the matter to the right conclusion. There was no challenge to the request by LE to lower the Escalade to the ground for the sniff, but it probably would have been affirmed anyway, given that the person charged with possession of the Escalade was the tow truck driver who gave his consent as well as the additional probable cause developed during the investigation.
U.S. v. Humphries (Pennsylvania 2020) 2020 U.S. Dist. LEXIS 225165
Traffic Stop; Odor of Marijuana as Probable Cause; Reliability Foundation; Good Faith Doctrine
LE received tips from two individuals that guns and drugs were present at an address in a “high drug, high crime area.” Both tips identified the same car by its make and license plate and that the male driving the vehicle was “hooking up” with a woman in the “20” row of the apartment complex. The vehicle was registered to subject who had a suspended license. The vehicle was confirmed to be parked in the parking space that went with an apartment in the 20 row of the complex. During the same month as the tips, LE spotted the vehicle and noted that its windows were so heavily tinted that LE could not see through them, even to catch a glimpse of the driver. A traffic stop was initiated and when subject lowered the window, LE could smell an overwhelming scent of both raw and burnt marijuana. Subject admitted to smoking marijuana right before he left his home. Subject was then detained for DUI. At the hospital where subject was blood tested, a couple of joints (one burned, one raw) fell out of subject’s pants. The scent of marijuana remained in the vehicle even after subject was removed. The vehicle was then searched for drugs and guns. Nothing was recovered. PSD team sniffed the vehicle; PSD stopped at the closed passenger door of the vehicle, signaling that he wanted to be let into the vehicle to sniff further. PSD then alerted on the back seat where a gun and drugs were found. A search warrant was then issued. However, while it contained information from the officer who conducted the traffic stop and the fact that a PSD alerted on the vehicle, the tips were not included nor was any information about the qualifications of the PSD team.
The court held that the stop was lawful, given the dark tint on the windows and that any pretext LE had from the tips was irrelevant to that finding. The court also addressed the PSD sniff, stating that since the PSD signaled he wanted to be let into the interior of the vehicle, there was no evidence that any of the officers encouraged PSD to enter the interior until after it alerted to the passenger door. Although PSD’s entry inside the vehicle was aided by LE, there was no evidence that LE encouraged, provoked or directed the PSD to enter the vehicle. Therefore, the sniff was lawful as well.
The court turned next to the search warrant. The only challenge raised was that the affidavit did not contain any information about the PSD’s qualifications and therefore the magistrate could not determine the PSD’s reliability. The court held that since the PSD’s alert was not the only probable cause in the warrant (the smell of marijuana detected by human officers was also present), the magistrate inferring that the PSD was reliable was not fatal to the probable cause in the warrant. The 3rd Circuit case law indicated that while other circuits require more information about the reliability of the PSD, the 3rd Circuit has yet to require such information. And finally, the court held that LE was entitled to rely on good faith.
Note: While this court was not too concerned with the reliability foundation of the PSD and also found that the smell of marijuana in this case was sufficient probable cause for the search warrant to issue, one should not take that as a green light not to list the certification and training of the PSD team. The better practice is to list that information as a foundation for the magistrate to conclude the PSD is reliable.
U.S. v. Hussein (Minnesota 2020) 2020 U.S. Dist. LEXIS 234205
Alert as Probable Cause; Good Faith Doctrine
LE searched a residence pursuant to a search warrant and recovered a large amount of Oxycontin. During the execution of the warrant, two people drove up to the residence and the passenger entered the residence. The driver remained in the vehicle, but was asked by LE to come into the residence. A certified PSD team (already at the scene) sniffed the vehicle and alerted. LE then had the vehicle secured and towed to the police department and sought an additional warrant for it. Contraband was found.
Driver filed a motion to suppress based solely on the warrant issued for the vehicle. This meant that the court had to determine if the warrant, based solely on what was in the affidavit, stated facts that rose to the level of probable cause. The court held that the alert, since it came from a properly certified PSD team, was probable cause sufficient, in itself, to support the warrant for the vehicle. However, there were additional factors (vehicle drove up to a drug house) as well. Finally, the court threw in at the end that LE was entitled to rely on a good faith exception anyway.
Note: It may seem odd that even though the court found ample probable cause, that it went on to explain that LE was entitled to rely on good faith. When courts do this, they are signaling to any reviewing court that they have considered the doctrine and found it applicable to the facts. Once a court had done that, the reviewing court can then only review the lower court’s decision to determine if there was a departure from the law, and cannot reconsider the conclusions of the lower court’s determination of the facts. It’s basically saying that there is nothing to overturn here.
U.S. v. Morris (Georgia 2020) 2020 U.S. Dist. LEXIS 240421
Traffic Stop; Reasonable Suspicion; Collective Knowledge Doctrine
An investigation over a few months in 2019 revealed that subject was talking to prisoners regarding methamphetamine dealing on intercepted phone calls. The conversation revealed that a shipment of drugs was on its way to a hotel in Douglasville, Georgia in a Nissan Rogue with Nevada plates. A Nissan Rogue was not at the hotel, but one with Nevada plates was spotted at the residence of the person communicating with the prisoner. Surveillance was set up on this residence. Later that day, LE learned through the intercepted phone calls that subject was going to deliver some of the drugs to a customer in a Cadillac at Food Depot. LE saw subject leave the residence with a white plastic bag with black writing, get into a Hyundai and drive to the meet location. At the Food Depot, LE saw a person get out of a Cadillac, get into the passenger seat of the Hyundai, then get out of the Hyundai carrying a white plastic bag with black writing, get back into the Cadillac and leave. Later that same day. LE saw subject back at his residence carrying a trash bag. Subject got into the Rogue, drive to the Food Depot and throw a white trash bag in the dumpster. LE retrieved the bag and noted residue that later tested positive for methamphetamine. Another customer contacted subject for delivery of drugs at the Food Depot. LE saw subject carrying a bag or an object, get into the Hyundai and drive to Food Depot.
Prior to these observations, LE had conducted 5 related traffic stops that resulted in the seizure of methamphetamine. Local LE was recruited to do a traffic stop on subject on the day the suspected sales were conducted. Local LE was briefed on the investigation, including a description of the Hyundai, and throughout the day monitored the activity of the task force LE. Local LE located the Hyundai in the expected location and pulled it over for two traffic violations (tinted windows and following two closely). Subject said he did not have a license. LE told subject he was going to get a warning and gave him pen and paper to write his identification information down. Subject was asked to get out of the Hyundai. While LE was writing the citation, subject was extremely nervous. LE asked for consent to search the vehicle and subject refused. While continuing to write the citation, LE signaled to the on-scene PSD team to begin a sniff. (PSD team noted a heavy scent of air freshener, that subject was sweating profusely, that subject laughed at inappropriate times, his hands were trembling, his heart was beating so fast that LE could see it through his shirt and that subject raised his arms as if he was going to be searched when asked about weapons). After the PSD team alerted, LE told subject to hang tight and then went to the vehicle and begin searching. Subject was then detained in handcuffs. All this took a little over 8 minutes. Baggies commonly used to package narcotics were found in the vehicle.
The court addressed the probable cause for the search of the vehicle, finding that the vehicle was readily mobile and that, pursuant to the collective knowledge doctrine, probable cause existed because the facts and circumstances known to several LE involved in the case which is reasonably trustworthy information, was sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed. Since there was at least a minimal level of communication between local LE and task force LE, the court held probable cause existed even without the traffic violations. LE “heard the details of a drug deal that was about to occur, observed subject act in a way entirely consistent with the notion that he executed that transaction, saw him later throw away drug contraband in a grocery store dumpster, intercepted calls suggesting that a nearly identical deal was in the works, and saw subject begin to execute the second transaction in the same way he behaved during the first. Because the court found probable cause existed even before the traffic stop, the court did not reach the issue of prolonged detention.
Note: Nothing really new here. PSD involvement was not challenged, but good discussion of how the investigation and communication between teams combined to create probable cause.
U.S. v. Neal (Arkansas 2020) 2020 U.S. Dist. LEXIS 237144
Traffic Stop; Marijuana as Probable Cause for Search
LE had identified subject as a possible drug dealer who was on parole with a 4th Amendment waiver. LE had searched the listed parole address and learned that subject no longer lived there. LE found out he was living with his girlfriend at an 18th Street address. LE had observed a silver car was affiliated with that address and had seen subject driving that silver car (it was registered to subject’s sister). Subject also had a suspended license. LE observed subject driving the silver car violate traffic laws and pulled him over. LE then smelled the strong odor of marijuana coming from the vehicle. The vehicle was searched and controlled substances found. Subject said that he lived at the 18th Street address. LE grabbed subject’s keys which had a key to the 18th Street residence. Parole conducted a parole search of the residence.
Subject challenged the traffic stop but the court made short work of that, ruling that any traffic violation provides probable cause to stop the vehicle and detain the driver. Subject then challenged the search of the vehicle. The court held that, at a minimum, the smell of marijuana can support a finding of probable cause for a warrantless automobile search. Given that, and LE’s knowledge of subject’s criminal background, there was probable cause to search the vehicle.
Note: Arkansas only allows medicinal marijuana.
U.S. v. Roberts (Missouri 2020) 2020 U.S. Dist. LEXIS 236141
Collective Knowledge Doctrine; Reasonable Suspicion for Detention; Alert as Probable Cause
LE was running an investigation using CIs and controlled buys from a specific dealer. Some controlled buys were by undercover officers. In January, CI informed LE that subject was driving a white Chevy Cruze and was in possession of methamphetamine and a gun. LE arrived in the area within 20 minutes and spotted a white Chevy Cruze. LE was in plain clothes and an unmarked vehicle, so he asked uniforms to perform a traffic stop after he observed traffic violations (LE couldn’t remember what those violations were at the time of testimony) by the Cruze. Uniforms performed a felony traffic stop due to the report of a gun in the vehicle. Uniforms told subject that the vehicle was reported stolen (a ruse) as the reason for the felony stop procedures. Subject Terry frisked and no weapon found. PSD was deployed on the vehicle and alerted twice at the driver’s window. Vehicle searched per probable cause from alert and meth and a loaded gun were found. In February, subject was reportedly at another drug house and was with a person who had several warrants out for her. Again, LE followed him and, at his direction, uniforms stopped subject. Passenger indeed did have seven warrants out for her arrest so she was arrested. Subject was told three times he was free to leave (vehicle was his grandfather’s). Subject continued to stay in the area and LE responded to talk to him. LE contacted him and got consent to talk to him. LE told subject that they thought the vehicle contained drugs (LE had additional information of drug dealing/selling from CI and surveillance) and he was waiting for a PSD to respond. Subject denied having drugs but admitted having his grandfather’s rifle in the vehicle. LE reminded him that as a habitual use of drugs, he is not allowed to possess firearms and his admission allowed LE to search the vehicle. Subject asked if he was going to jail. LE responded he would not take subject to jail if he was honest. Subject then admitted to possessing meth in the vehicle.
Subject filed motions to suppress on both searches. The court took up the January search first, finding that LE had probable cause to search the Cruze based on the collective knowledge doctrine, which included information of prior buys and the surveillance of subject that day prior to the stop. The court further held that if probable cause was not present, the information certainly led to a reasonable suspicion which justified the stop and the limited investigation at the scene. The totality of the circumstances shows that officers conduct[ed] a reasonably limited investigation to confirm or dispel [their] suspicion that subject was in possession of methamphetamine and a firearm. The court further confirmed that the PSD was properly certified and his alerts provided probable cause to search the vehicle. The court then turned to the February stop, finding that the knowledge that subject’s companion had felony warrants was reasonable suspicion to stop the vehicle and confirm this status. The stop lasted 26 minutes and it took 20 of those minutes to confirm all the warrants against the companion. In addition, subject was told three times he could leave. In addition, the contact between LE and subject started out as a consensual contact and transformed into a reasonable detention once LE said there was a PSD on the way. However, based on the previous surveillance and investigation, LE had reasonable suspicion to detain subject to investigate drug crimes. Once subject admitted to possessing a firearm, LE had probable cause to search the vehicle.
Note: PSD’s role really wasn’t challenged here, as reasonable doubt and probable cause was easily found from LE’s investigation over the two months. The court also held that the collective doctrine applied, particularly as to the January stop, as the observations of LE were imputed to the stopping officer.
U.S. v. Registe (Virgin Islands 2020) 2020 U.S. App. LEXIS 38794 (Not precedent as opinion is not by the full appellate court)
Odor of Marijuana as Probable Cause
Folks were standing around a parked car near a bar in a high crime area, smoking marijuana. Subject seated in a car with heavily tinted windows. LE shined a flashlight into the interior of the car and spotted an empty firearm holster. LE also noticed that subject was holding what appeared to be a joint. LE knocked on the window to talk to subject but he tried to drive away. He was thwarted by traffic, so he parked the car and got out. LE claimed to smell marijuana. Subject was Terry frisked and handcuffed due to “resistance”. No contraband was found, but LE found the keys to the car and used them to search the vehicle, which yielded a gun, marijuana packaged in sandwich bags and cash.
The court held that the smell of marijuana as well as the possession of a joint by subject was probable cause to search the vehicle.
Note: The Virgin Island, an American territory, has not legalized marijuana as it is under federal jurisdiction.
U.S. v. Schneiders (Iowa November 2020) 2020 U.S. Dist. LEXIS 232038
Probable Cause for Search of a Person; Collective Knowledge Doctrine
A confidential informant contacted the Drug Task Force and told them that some dude wanted to sell him ounces of drugs. CI contacted the DTF again a few days later and said same dude wanted to 5 or 6 ounces to him for $3000. CI and DTF went to the meet location. Via Facebook, subject, who claimed he was friends with dude, inquired where CI was. There was quite a bit of back and forth, during which DTF was able to pinpoint what vehicle subject was in. DTF instructed uniforms to contact subject (who was in a van) along with a PSD team. Subject was in the passenger seat and said the van belonged to another party who was inside the nearby building taking a class. Subject was asked to step out and refused to permit a Terry frisk. The PSD sniff took place within three minutes of first contact by LE with subject. PSD alerted to the van. LE searched subject (after a “bit” of resistance), found a pipe and then searched the vehicle, finding methamphetamine.
The court held that the initial contact and ordering subject out of the van was a seizure under the Fourth Amendment but that DTF/LE had reasonable suspicion that subject was in possession of methamphetamine under the collective knowledge doctrine. The court then addressed the claim of prolonged detention. Since the initial detention was actually for drug possession, the court held that the three minute investigation inquiring why subject was present at this location, his drug use and if anything illegal was in the vehicle was not prolonged detention. In addition, a sniff by a reliable PSD (although PSD’s reliability was not challenged) was part of that investigation and not prolonged detention.
Subject then complained that no probable cause existed to search him because even though the PSD alerted on the car, this didn’t mean that subject was in possession of contraband. The court found probable cause based on the investigation with the CI, the fact that LE was able to corroborate much of the information CI gave them, and the alert from the drug dog on a vehicle in which subject was sitting just minutes earlier. The court went on to discuss what they said was a closer issue: whether the search was incident to arrest which would allow LE to search subject without a warrant. Here, LE had probable cause to arrest subject but at the time of the search, he was not actually under arrest, just detained in handcuffs, and at the end of the encounter, he was allowed to go home. In Cupp v. Murphy (1973) 412 U.S. 291, the Supreme Court ruled that seizing what LE thought to be blood under the fingernail of the suspect (potential evidence) without formally arresting suspect was permissible because suspect was aware of LE’s intent and that suspect was indeed a suspect, thereby creating a situation where if the fingernail scraping was not done immediately, there was substantial evidence that the suspected blood would be destroyed. Here, the appellate court compared the situation to the rationale in Cupp; subject knew LE suspected him of possessing drugs and he likely suspected LE knew about the planned drug deal, given the large police response. In addition, subject was agitated and all these factors contributed to a high risk of evidence being destroyed. Under these facts and because probable cause existed to believe that subject was in possession of controlled substances, the court held that the search of subject’s person was constitutional.
Note: Because there was probable cause to search for controlled substances, the court found that searching the person of subject was constitutional even though he was not formally arrested. The alert by the PSD was not relied on for the probable cause for the search; however, since subject was already detained, LE could have searched the vehicle first, found the controlled substances and then arrested subject and searched pursuant to arrest. A stickier wicket would have emerged if no contraband were found in the vehicle.
U.S. v. Schneiders (Iowa December 2020) 2020 U.S. Dist. LEXIS 231819
Same case as above; Probable Cause to Search Person
This case has the same facts as the above case; however, it holds that since LE had probable cause to believe subject was dealing drugs, the search was valid. To hold otherwise (LE had to take subject into custody to search him) would create a perverse effect of encouraging the government to impose a greater intrusion (arrest v. detention) on a subject’s freedom to comply with the Fourth Amendment.
Note: Same result as the above case, but a little bit different reasoning. Both make sense.
Varner v. Roane (Virginia 2020) 2020 U.S. App. LEXIS 37665
Reliability Foundation; Consent
Civil rights case brought by subject who was approached by LE and requested to leave a restaurant. Subject knew the officer from a previous arrested. LE asked him to empty his pockets and Terry frisked him. Nothing was found. LE asked for a breath test as subject had been drinking. Subject refused and said he would not be driving. PSD team then approached subject’s vehicle and performed a free air sniff and alerted. Subject claimed that handler manufactured the alert by smacking the side of the vehicle and only after that did PSD jump up and put his paws on the vehicle. However, PSD’s alert is pressing his nose against where he smelled the odor, which he did in this case (subject was on the opposite side of the vehicle at the time and presumably unable to see the alert). However, no drugs were found in the vehicle. The trial court held that subject had failed to allege facts that would support a claim of violation of civil rights.
In this appeal, subject first claimed that he did not consent to be searched. However, there were no facts other than subject’s assertion that consent was not given (he did not allege that LE did anything to assert authority; instead, they requested he speak with them which he did). The court held that subject did consent to the contact.
Subject’s second claim was that LE conspired with the handler to manufacture an alert. However, the facts did not support subject; not only was there evidence that subject could not physically see the alert, the court noted that the PSD team was properly trained and certified, meaning the alert was reliable. Case was dismissed.
Note: Although not noted in the holding in this case, subject apparently felt he was able to refuse at least some of LE’s requests as he refused to perform a breath test. This also supports the fact that the initial encounter was consensual because subject did not object and instead complied with LE’s request to go outside and voluntarily emptied his pockets, apparently without instruction.
