Meyer’s K9 Law

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 (A caution here: some cases are unpublished (Unpub.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

As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things 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 not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.

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

MARIJUANA UPDATE FOR JANUARY 2022

2021 Marijuana Status Round Up

Marijuana remains illegal at the federal level. States, however, continue to legalize in some form: medical marijuana, recreational marijuana and decriminalization. This last year Connecticut, New Mexico, New York, and Virginia passed legislation to legalize marijuana for recreational purposes. 19 states and the District of Columbia have now legalized recreational marijuana and 36 states (and DC) have legalized medical use.

Legislation for recreational use is pending in Pennsylvania, Rhode Island, and Wisconsin. Florida, Hawaii, Minnesota, Nebraska, and North Dakota attempted to pass legislation to legalize marijuana this year, but were not successful.

New Jersey‘s route to legalization included a voter-passed ballot measure to legalize marijuana and the legislation was passed to make the ballot measure official. However, South Dakota‘s appellate courts ruled the state’s 2020 recreational ballot measure unconstitutional and the issue is pending before the state’s Supreme Court. And in Florida, the state Supreme Court struck down a ballot initiative for adult recreational use of marijuana because court held the language in the summary of the initiative was misleading.

Kansas considered numerous bills to create a state medical marijuana program but none passed. Nebraska also introduced legislation to legalize medical marijuana this yea; the bill did not advance but may be considered next year. Texas passed a bill relating to medical use of low THC marijuana. Mississippi attempted to pass a medical marijuana program but their Supreme Court struck it down on procedural grounds.

This website will continue to monitor the status of marijuana legalization and what that means to handlers, supervisors and policy makers for K9 units and teams.

INDEX OF CASES REVIEWED FOR JANUARY 2022

United States v. Jones (Kansas 2021) 2021 U.S. Dist. LEXIS 245511 – Traffic Stop; Reasonable Suspicion; Alert as Probable Cause; Prolonged Detention

White v. Calvert (Texas 2021) 2021 U.S. Dist. LEXIS 245557 – Excessive Force; Qualified Immunity

Singletary v. Cano (Florida 2021) 2021 U.S. Dist. LEXIS 245722 – Excessive Force; Qualified Immunity

United States v. Shumaker (Iowa 2021) 2021 U.S. App. LEXIS 38467 – Odor of Marijuana as Probable Cause

State v. Dupee (Wisconsin 2021) 2021 Wisc. App. LEXIS 1206 – Traffic Stop; Prolonged Detention

Commonwealth v. Barr (Pennsylvania 2021) 2021 Pa. LEXIS 4375 – Odor of Marijuana as Probable Cause

United States v. Younglove (Florida 2021) 2021 U.S. Dist. LEXIS 247869 – Traffic Stop; Odor of Marijuana as Probable Cause; Arrest v. Detention

United States v. Cole (Illinois 2021) 2021 U.S. App. LEXIS 37398 – Traffic Stop; Reasonable Suspicion; Prolonged Detention

United States v. Harden (Minnesota 2021) 2021 U.S. Dist. LEXIS 242186 – Traffic Stop; Reasonable Suspicion; Prolonged Detention

United States v. Santana-Vasquez (Maine 2021) 2021 U.S. Dist. LEXIS 243150 – Traffic Stop; Prolonged Detention; Reliability Foundation; Cueing; Alert as Probable Cause

Guthery v. State (Indiana 2021) 2021 Ind. App. LEXIS 401 – Traffic Stop; Prolonged Detention

United States v. Ahmad (Illinois 2021) 2021 U.S. App. LEXIS 37991 – Consensual Encounter; Voluntary Consent

Milton v. Belmar (Missouri 2021) 2021 U.S. Dist. LEXIS 244658 – Excessive Force; Qualified Immunity

Lewis v. State (Louisiana 2021) 2021 La. App. LEXIS 2053 – Traffic Stop; Currency Sniff

Rosenbaum v. City of San Jose (California 2021) 2021 U.S. Dist. LEXIS 245185 – Excessive Force; Qualified Immunity

Commonwealth v. Conner (Kentucky 2021) 2021 Ky. LEXIS 419 – Traffic Stop; Prolonged Detention

Commonwealth v. Parady (Virginia 2021) 2021 Va. Cir. LEXIS 354 – Traffic Stop; Alert as Probable Cause

Mullins v. City of Colorado Springs (Colorado 2021) 2021 U.S. Dist. LEXIS 239225 – Excessive Force; Qualified Immunity

Blakes v. Superior Court (California 3rd App. Dist. 2021) 2021 Cal. App. LEXIS 1057 – Traffic Stop; Odor of Marijuana as Probable Cause; Impound Search

United States v. Moton (Alabama 2021) 2021 U.S. Dist. LEXIS 240717 – Traffic Stop; Reasonable Suspicion; Consent; Prolonged Detention

United States v. Winder (Missouri 2021) 2021 U.S. Dist. LEXIS 240761 – Standing; Consent; Alert as Probable Cause

State v. Moyer (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 958 – Traffic Stop; Prolonged Detention; Alert as Probable Cause; Fruit of the Poisonous Tree

United States v. Johnson (Maryland 2021) 2021 U.S. Dist. LEXIS 237720 – Traffic Stop; Odor of Marijuana as Probable Cause; Inevitable Discovery; Search Incident to Arrest

United States v. Reed (Alabama 2021) 2021 U.S. App. LEXIS 35565 – Traffic Stop; Odor of Marijuana as Probable Cause;

United States v. Lopez (Texas 2021) 2021 U.S. Dist. LEXIS 230712 –
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Reliability Foundation

United States v. Sapp (Tennessee 2021) 2021 U.S. Dist. LEXIS 230871 – Odor of Marijuana as Probable Cause; Fruit of the Poisonous Tree

Thimes v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 685 – Investigatory Stop; Reasonable Suspicion; Prolonged Detention

United States v. Covington (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 232510 – Alert as Probable Cause; Cueing; Reliability Foundation

State v. Brunk (Ohio 2021) 2021-Ohio-4270 – Consensual Contact; Odor of Marijuana as Probable Cause

Luttrell v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 1093 – Traffic Stop; Alert as Probable Cause; Prolonged Detention; Brady Evidence

Rodriguez-Morfin v. Howell (Nevada 2021) 2021 U.S. Dist. LEXIS 235787 – Scope of Consent

United States v. Rutledge (South Dakota 2021) 2021 U.S. Dist. LEXIS 231342 – Traffic Stop; Alert as Probable Cause; Collective Knowledge Doctrine

United States v. Camacho (Texas 2021) 2021 U.S. Dist. LEXIS 229674 – Reasonable Suspicion; Collective Knowledge Doctrine; Prolonged Detention; Alert as Probable Cause

United States v. Ferrusquia-Sanchez (West Virginia 2021) 2021 U.S. Dist. LEXIS 230017 – Traffic Stop; Prolonged Detention

REVIEWED CASES FOR JANUARY 2022

United States v. Jones (Kansas 2021) 2021 U.S. Dist. LEXIS 245511
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause; Prolonged Detention

Jones was stopped by Kansas LE for speeding, signal violation and no seatbelt. Jones took about 20 seconds to pull over. The vehicle had a Texas plate and was registered to someone else who lived a significant distance from Jones. Jones said a friend let him borrow the car, but couldn’t remember the name and he was meeting people to party but couldn’t name them either. Jones was more animated and nervous than LE expected. LE found out that Jones’ license was invalid; therefore, Jones was subject to arrest. LE then checked regarding border crossings by this vehicle. LE found out that there was a one day trip over the border into Mexico and Jones was a third party. At this point, LE decided there was enough reasonable suspicion to call for a K9 team and told Jones he would have to wait for the K9 team. LE then returned Jones’ documents to him. Jones denied consent to search. The K9 team arrived and a Terry frisk of Jones revealed no contraband. The K9 alerted to the vehicle. 112 pounds of meth was found in a post-manufacture compartment.

Jones did not challenge the reason for the traffic stop or the duration of the stop until LE returned Jones’ documents to him after telling him he had to wait until the K9 team arrived. Jones’ sole contention was that the stop was unduly prolonged after LE returned Jones’ documents.

The appellate court went directly to the government’s allegation that LE had reasonable suspicion of drug trafficking such that the wait for the K9 team was justified. The court looked at the totality of the circumstances to make this determination, including the delay in the initial stop, Jones’ suspicious nervousness because it was accompanied by vague and evasive answers to routine questions about travel plans and the vehicle’s ownership. The court went on that if taken individually, these factors in themselves might not add up to reasonable suspicion, but when taken in totality, as the court is required to do, reasonable suspicion of drug trafficking was established.

Note: Nothing really new here, but by giving Jones his documents back prior to the K9 team’s arrival, an issue was needlessly created. If you believe you have reasonable suspicion for drug trafficking, there is nothing that prevents you from keeping the documents until your investigation is complete. Jones was not free to go in any event so returning the documents just created an issue for the defense to try to invalidate the prolongation of the traffic stop.

White v. Calvert (Texas 2021) 2021 U.S. Dist. LEXIS 245557
Excessive Force; Qualified Immunity

LE spotted White in a vehicle that had possibly been in a recent drug transaction. LE them saw White fail to signal a turn. White had parked and exited his vehicle by the time that LE flashed his emergency lights and told White to get back into the vehicle. White fled instead. White claimed he fled because this particular officer had arrested him before and was “hands on.” LE said he didn’t recognize White until White eventually was captured.

LE chased White for over two hours in the middle of the night, as White ran across a major highway and over a 10-foot razor wire fence. LE eventually found White attempting to hide in a residential backyard. At LE’s request, handler released his K9 to capture and hold White in a small shed in the backyard. White alleged that immediately before handler released the dog, LE saw White lying on the ground of the shed, on his stomach, with his hands visible behind his back, no longer attempting to resist or evade arrest. White claimed that he told LE to put handcuffs on him because he didn’t want to get bit by K9. Instead, LE called for the K9, who then bit him while handler was holding onto K9’s collar. The K9 was released and then bit him again.

Handler’s statement was different. Handler stated that K9 ran to the back of the shed after White and when LE approached, White ran directly at him. LE deployed his taser which was ineffectual. White then ran into another shed (unlit) and only LE could see White, who instead of following directions to show his hands, reached toward his waistline. LE told handler to release K9. Handler gave the command to apprehend (bite). Handler then entered the shed and saw K9 engaged with White’s arm. When handler saw that White was unarmed, he entered the shed and got into position to release K9. Handler gave the command to release, but K9’s teeth were entangled in White’s shirt which made the K9 think White was resisting. Handler immediately gave 5 commands to release and tried to choke the K9 off. The K9 bit White for about 90 seconds, despite efforts by handler to get the dog to release his bite sooner. This prolonged and worsened the injuries from the bite.

White filed this complaint alleging that handler used excessive force and that LE failed to intervene, thus violating White’s Fourth Amendment rights. LE and handler claimed qualified immunity.

The appellate court first addressed the handler’s liability by addressing the Graham factors. The first factor favored White as the crime alleged was a drug transaction. However, the other two factors were in handler’s favor. This was a 2 hour chase until White was cornered and at no time did handler see White voluntarily surrender. Therefore, it was reasonable for handler to believe that White was willing to do anything to escape police capture. It was also objectively reasonable for handler to believe White posed an immediate threat to LE “[b]ecause [White] was still actively evading, the taser didn’t work, another officer requested the dog, and [White] was reaching into his waistband where weapons are known to be kept.”

However, the second alleged bite gave the appellate court pause. The circumstances of this second bite were disputed (handler claimed there was no second bite, but White claimed there was, creating a unresolved factual dispute). Since the jury could find that handler allowed K9 to continue to bite after handler determined White was no longer a threat (believing White), the court was unable to grant qualified immunity for the alleged second bite (all the Graham factors were then in White’s favor) while holding that the first bite was entitled to qualified immunity.

Note: This opinion severely limited White’s case. Only the alleged second bite was held to be a viable claim going forward. Handler said there was no second bite as the K9’s teeth were entangled in White’s shirt. White said there was a release of the first bite and then a command to bite again where he was bit again. The jury will have to figure out who is telling the truth. Unfortunately, the body camera videos were not helpful in making this determination at this stage of the case. This case is a good reminder that every stage of the bite is going to be assessed with vigorous scrutiny. Not only is the bite going to be assessed, but the duration of the bite and any subsequent bite is going to be assessed via the Graham factors that exist at the time.

Singletary v. Cano (Florida 2021) 2021 U.S. Dist. LEXIS 245722
Excessive Force; Qualified Immunity

Immediately before his arrest, Singletary and a co-defendant were observed burglarizing a home. LE responded to that residence. LE in tactical gear, along with a K9 team, entered the rear of the residence. LE heard handler make multiple K-9 announcements at the threshold of the rear door of the residence, which appeared to have been pried open with a tool. Other LE announced their presence and commanded the suspects come out. When LE entered the residence, they saw Singletary and his buddy peering out of the master bedroom. LE did not know whether there were other people in the house so handler kept K9 on a short lead (15 feet). As handler went through the house, he gave K9 numerous commands to bark so there could be no doubt that the suspects were aware of K9’s presence.

As LE reached the master bedroom door (now closed), more commands were given to surrender. As LE tried to push the door open, Singletary pushed it shut, hitting the K9 in the snout. LE then breached the door, allowing the K9 team to enter. Singletary tried to flee to an exit door but K9 apprehended him with a bite. K9 held on to Singletary as handler held on to K9 per their training. Singletary continued to conceal his hands underneath his body, in and around his waist, refusing to show LE his hands, despite commands. Singletary was ultimately restrained physically by LE. The K9 part of the arrest was about 20 seconds.

Singletary, however, claimed he surrendered for arrest “after” LE breached the bedroom door. He claimed that no matter how fast the K9 could possibly run, as a “human being” he could “clear several feet” so that the K9 would have been unable to catch him in the bedroom. Thus, he suggests that the K9 was “purposely deployed” to attack him when he was not armed, dangerous, or “running away.” He claimed the K9 bit him for 5 minutes.

The appellate court held that faced with a tense, uncertain, and rapidly evolving situation, handler’s decision to use K-9  to gain a hold over Singletary was not objectively unreasonable, even if all facts are viewed in the light most favorable to Singletary, and, importantly, regardless of whether Singletary was attempting to flee.

The court went on: Given how events unfolded, it was objectively reasonable for LE to use a K9 to locate and apprehend the suspects, whom they feared could be armed and dangerous and who ignored repeated commands to surrender, especially where video surveillance captured the suspects committing at least six burglaries before being apprehended burglarizing the residence in which Singletary was caught.

Ultimately, Singletary simply failed to point to a sufficient quantum of reliable record evidence to rebut LE’s undisputed facts, and because the undisputed facts showed that the use of force was not excessive, no triable issue exists on Singletary’s federal Fourth Amendment claim. Thus, qualified immunity was appropriate here.

The court went on to determine that the state claims should be addressed by the state courts rather than the federal ones.

Note: Singletary failed to properly plead some of his causes of action which, in the opinion of the court, compelled the court to deem admitted a large part of LE defendants’ assertions of what happened. This was a huge reason as to why the summary judgment ruling went in favor of LE. The court held “[Singletary] wholly fails to provide a narrative of what transpired which conflicts with [LE’s] narrative, such that a jury must be called upon to determine whether the use of force under the circumstances was reasonable.” Finally, given the strong finding of reasonable use of force which resulted in qualified immunity, the state claims should be easily dismissed as well.

United States v. Shumaker (Iowa 2021) 2021 U.S. App. LEXIS 38467
Odor of Marijuana as Probable Cause

In this case, LE (specially trained in drug crimes and intimately familiar with the odor of marijuana) was following Shumaker whose car window was down. LE smelled the odor of burnt marijuana coming from the car as they followed it. Upon approach after the traffic stop, LE again confirmed that the odor of marijuana was coming from the car. Occupants then confirmed they were smoking marijuana in the car. LE found burnt roaches in the car.

The appellate court upheld the motion to suppress denial because it found that LE did smell burnt marijuana coming from the car as LE followed it. This allowed LE to pull the car over to investigate.

Note: Marijuana in Iowa is illegal for recreational use if classified as marijuana but consumable hemp products including CBD products are legal for consumers to possess and registered retailers to sell. Possession of even small amounts of marijuana is a misdemeanor crime. Therefore, the odor is enough for probable cause. What’s interesting here is that the court credited the LE testimony as more truthful and believed that LE did indeed smell marijuana. However, since LE did follow the car for a short while before pulling it over, LE could have looked for another traffic violation to support the reasonable suspicion to pull the car over. Using as many avenues to admissibility is always good practice.

State v. Dupee (Wisconsin 2021) 2021 Wisc. App. LEXIS 1206
Traffic Stop; Prolonged Detention

Dupee was a passenger in a vehicle stopped for traffic violations. The driver could not produce any ownership documentation and admitted to having put false plates on the vehicle. LE returned to his patrol vehicle with their documents and called for a K9 unit while he investigated the vehicle’s ownership and its occupants to determine if the vehicle had been stolen. LE decided to issue two written warnings, but because of the ownership discrepancies and improper registration, LE had to manually enter all the information pertaining to the warnings. Before LE had completed and issued the written warnings, the K9 team arrived and immediately alerted to narcotics within the vehicle.

The only issue raised on appeal was whether LE “unnecessarily and unreasonably” extended the traffic stop for the arrival of the K9 team. The issue of whether the call to the K9 team was an unlawful extension was not raised (although Dupee argued that there was no reasonable suspicion to call for the K9 team; this is not the law and the court immediately dismissed it as an issue). Here, the court held, there was no delay because the K9 team arrived and alerted prior to LE having concluded his investigation into the traffic violations and the status of the vehicle.

Note: The courts are parsing out all of the actions by LE in calling for and using a K9 team for a sniff. Here, the court did not address whether the few seconds used to call the K9 was a prolongation in itself (other courts have). Dupee here claimed that reasonable suspicion is needed prior to calling for the K9 team. That is not the law. The court here followed the law in the Rodriguez case.

Commonwealth v. Barr (Pennsylvania 2021) 2021 Pa. LEXIS 4375
Odor of Marijuana as Probable Cause

The appellate court held here that the smell of marijuana may be a factor, but not a sole factor, in determining whether the totality of the circumstances established probable cause to permit LE to conduct a warrantless search of a vehicle. Here, LE simply stopped the vehicle for a minor traffic violation and then smelled marijuana upon approaching the vehicle. Even though the stop was in a high crime area, this was not enough for a finding of probable cause which would have supported the search.

Note: This finding was based on Pennsylvania’s relatively recent legalization of medical marijuana. Interestingly, the smell was identified as “burnt” marijuana which LE used to attempt to get the driver out to investigate whether the driver was impaired. However, the occupants showed LE medical marijuana cards. The court held that such cards created a situation where the smell of marijuana alone is not enough for probable cause. It doesn’t appear that the investigation into driving under the influence was pursued; had it been, and the driver was impaired, a search incident to arrest might have saved this search.

United States v. Younglove (Florida 2021) 2021 U.S. Dist. LEXIS 247869
Traffic Stop; Odor of Marijuana as Probable Cause; Arrest v. Detention

During an investigation in which Younglove was seen conducting many hand to hand drug transactions, he was stopped for running stop signs. Because of his history (both criminal past and this investigation), his car was surrounded by LE vehicles and he was ordered out of his car at gunpoint. LE smelled the scent of marijuana as the occupants were removed. The court held, that on the basis of the body cam footage, this was a genuine observation by LE. Marijuana and additional controlled substances were found in the vehicle. Within 10 minutes of the stop, a K9 (already present on scene) sniffed and alerted on the vehicle (unclear if K9 alerted when outside the vehicle or when he jumped in the back seat and sat on the bag with the drugs).

The appellate court held that LE had probable cause to arrest Younglove for drug offenses when he was stopped for the traffic violations, based on the previous investigation (controlled buys along with observed hand-to-hand transactions, among other things).

Note: Younglove did not challenge the alert of the K9 in this case nor the fact that the K9 entered the vehicle, so those issues are not discussed. The take away here is that when LE has a significant investigation into the subject prior to the stop, it makes sense to have a K9 on scene ready to sniff as soon as possible. This eliminates the prolongation argument.

United States v. Cole (Illinois 2021) 2021 U.S. App. LEXIS 37398
Traffic Stop; Reasonable Suspicion; Prolonged Detention

LE stopped Cole for following too closely on an Illinois Interstate. He had an Arizona driver’s license and California registration. The hatchback was covered by a tarp. LE asked about the ownership of the vehicle (registered to someone else); LE saw numerous drinks and snacks in the car, which led LE to believe that Cole had been traveling long distances. LE observed, though, that the only luggage in the car was a small backpack. Cole, in response to questions about his travels, was evasive, contradictory and described a route that did not make sense. Cole had an odd story of how he acquired the car and again touched on his peripatetic existence going from state to state. Less than 9 minutes into the stop, LE told him he was going to give him a warning but they needed to relocated to a nearby gas station for safety. At the station, LE called for a K9 team to respond. About 45 minutes after the stop began, the K9 alerted to the vehicle and methamphetamine was found.

Cole complained that LE did not have reasonable suspicion of a traffic violation and unreasonably prolonged the stop to inquire into his travel plans. The appellate court made short work of the first question, holding that there was ample evidence of LE reasonably believing that Cole following another vehicle too closely.

The appellate court then addressed the issue of prolonged detention via questioning by LE of Cole’s travel plan. The court held that since Rodriguez did not specifically list questioning about travel plans as an acceptable inquiry for a traffic stop, the inquiry must be whether, in the totality of circumstances, reasonable travel-plan questions, like the other ordinary inquiries of a stop, are justified by the traffic violation itself or by the related concerns of highway and officer safety. Applying this framework, the appellate court held that travel-plan questions ordinarily fall within the mission of a traffic stop because such questions reasonably relate to the underlying traffic violation and roadway safety. Here, LE’s initial questions led to evasive and confusing answers, necessitating additional questioning by LE.

The court then addressed whether the prolonged wait for the K9 team was unreasonable. The court held that LE had a reasonable suspicion that Cole was engaged in criminal activity, which gave him a lawful basis to prolong the stop to conduct a K9 sniff, given Cole’s improbable and inconsistent answers, his extreme nervousness, his newly registered and insured car, the covering over his rear cargo area, and his limited luggage, which did not square with a cross-country road trip.

Note: The issue of what type of questioning is permissible during a traffic stop has been getting some traction. However, it is apparent from the analysis stated by this court that most jurisdictions have held that questioning about travel plans is within the scope of the traffic investigations, until it goes too far. What that outer limit is remains to be seen. The take away here is that if you get evasive or nonsensical answers, you are allowed to follow up.

United States v. Harden (Minnesota 2021) 2021 U.S. Dist. LEXIS 242186
Traffic Stop; Reasonable Suspicion; Prolonged Detention

Harden was stopped by handler for driving too slowly and lane violations. He was concerned that the driver was impaired or having a medical crisis. Handler approached and questioned Harden about her driving. Handler noted that her tires were almost bald. Harden did not have a valid driver’s license. Handler returned to his vehicle to start processing the violations. Approximately 15 minutes into the stop, handler re-contacted Hardin, requesting paperwork on the vehicle. At that time, handler could smell the faint odor of burnt marijuana coming from the vehicle. Handler asked about any contraband in the vehicle and asked for consent to search. After talking to someone on her phone, Hardin refused. Hardin was handed her citation. Handler then informed Hardin that he was going to have his K9 sniff the vehicle and if he did not alert, Hardin could be on her way to her destination. Handler had her exit the vehicle and he retrieved his K9 who then alerted on the vehicle. Once the alert was noted, handler opened the driver’s door and K9 entered and sniffed the interior and alerted. Handler then detained Hardin in his patrol vehicle while he searched the car. A stolen gun was found.

The appellate court first found that handler had reasonable suspicion to initiate a traffic stop. The court then turned to whether handler had reasonable suspicion of additional drug offenses to legally prolong the stop for a K9 sniff. The court found handler’s testimony about the faint odor of burnt marijuana to be credible. In addition, Hardin admitted to having smoked earlier in the vehicle. Once handler smelled the odor of marijuana, the court held that handler had probable cause to search the vehicle. Therefore, the search of the vehicle was constitutionally permissible at that point.

The court then held that its inquiry could end there, but decided to address the K9 issues brought up by Hardin out of an abundance of caution. Hardin presented an expert, Andre Falco Jimenez, whom the court found to not be helpful. Jimenez raised the issue of cueing which the court easily dismissed (handler tapped the car several times to bring K9’s attention to an area, but K9 never exhibited alert behaviors at these times).

Note: Jimenez had been discredited as a defense expert in multiple jurisdictions now and appears to be perceived by the judiciary as somewhat of a joke. If you have a defense expert regarding your K9, please let me know and I can guide you in determining whether the proposed expert has anything useful to say (or bring it up with your local prosecutor).

United States v. Santana-Vasquez (Maine 2021) 2021 U.S. Dist. LEXIS 243150
Traffic Stop; Prolonged Detention; Reliability Foundation; Cueing; Alert as Probable Cause

Defendant (Santana-Vasquez) was stopped by LE for speeding. During the pendency of the traffic stop (LE was waiting for a tow truck because the car was unregistered and driver was unlicensed), a K9 sniff was performed and the K9 alerted. During discussions of the alert and the fact that the car search failed to reveal narcotics, defendant admitted that the car belonged to a drug dealer and that she was in possession of controlled substances inside her. At the station, defendant surrendered a condom full of fentanyl from her vagina.

The first issue addressed by the appellate court was the prolonged detention argument. However, since the K9 was in the process of the sniff when the tow truck arrived, the stop was not prolonged by the sniff. In addition, when the K9 alerted, that provided additional reasonable suspicion to extend the investigation to include drug trafficking (and probable cause to search the vehicle).

Defendant then claimed that the K9 was not reliable. Although K9 was not trained in fentanyl, the court noted that the vehicle belonged to a drug dealer and could have been recently used to transport drugs. In addition, even though K9 had some false alerts in his training records, he had been recertified without interruption. Therefore, the court held the K9 to be reliable.

Finally, defendant claimed that the K9 did not alert and, alternatively, the handler cued the K9 to alert. The court found that based on the testimony of the handler as well as the dashboard camera footage, it was apparent that the K9 was behaving consistently with an alert, including briefly sitting. This was sufficient reasonable suspicion to continue the investigation and probable cause for a search. The court also stated that there were additional indicators based on defendant’s behavior that would support additional reasonable suspicion to extend the investigation.

Note: Fentanyl is becoming more and more prevalent as a cut and as a stand alone drug. It is very dangerous to handle and, at this point, drug dealers still, for the most part, deal other controlled substances along with the fentanyl. Training K9s on fentanyl may be appropriate if it can be accomplished safely. If you are in a jurisdiction that is seeing seizures of fentanyl going up, you may want to start a discussion with your team, your supervisor and your trainer.

The reliability foundation was challenged on this K9 and even though he had some training issues, it was clear from this opinion that the K9 had been effectively remediated. A failure in training is not a big deal as long as the K9 is successfully remediated and the K9 is certified appropriately.

There were other issues raised in the opinion, but they were not relevant for purposes of this website.

Guthery v. State (Indiana 2021) 2021 Ind. App. LEXIS 401
Traffic Stop; Prolonged Detention

Guthery was stopped by LE for speeding. LE was asked to perform this stop from detective who were investigating Guthery for drug trafficking. Prior to pulling over, LE saw Guthery reach toward the center console, which LE knew from experience that controlled substances as well as guns can be stored there. Guthery was abnormally nervous and his explanation of his travel plans was odd. Guthery was instructed to keep his window down and to not use his cell phone. LE then started investigating the identification and registration which took him some time as there were several entries with similar information such that he had to look at each one to determine if it was relevant. Handler rolled up on the stop and, since Guthery had rolled up his window and was talking on his cell phone, handler was instructed to inform Guthery of LE’s previous orders. While working on the ticket, LE gave state advisements and asked for consent to search which was refused. Handler then decided to sniff the vehicle. The K9 alerted. LE stopped writing the citation when the sniff began. Drugs and a gun were found in the vehicle.

LE testified inconsistently as to what he was doing while the sniff was going on. At the suppression motion, he said he stopped working on the citation. At trial, he said he continued working on the citation. However, the court held, they didn’t need to address these inconsistencies further because even if the stop was prolonged by the sniff, the court concluded that LE had sufficient independent reasonable suspicion to justify Guthery’s further detention, based on the totality of the circumstances: 1) Guthery reached toward the console prior to stopping; 2) Guthery exhibited unusual nervousness: 3) Guthery provided inconsistent answers when asked where he was going; and 4) Guthery also disobeyed LE’s instructions to refrain from rolling up his window and using his cell phone.

Note: If LE had stopped processing the citation during the sniff, that could have resulted in a finding that the sniff prolonged the stop. If LE could not articulate a valid reason for suspending the traffic investigation for the sniff (i.e.; officer safety), then the better practice is to continue the traffic investigation unless or until there is a valid alert from the K9. Also, inconsistent testimony is a red flag in court. Not sure why this happened; often there is a good explanation. But you don’t want to read in an appellate opinion that you testified inconsistently, especially today with your agency’s Brady obligations.

United States v. Ahmad (Illinois 2021) 2021 U.S. App. LEXIS 37991
Consensual Encounter; Voluntary Consent

LE on drug-interdiction duty in central Illinois observed an RV with a dirty license plate. The RV stopped at a truck stop and driver and passenger entered the store. A store employee told LE that the men were were acting strangely. LE asked to speak to them before they reentered the RV. They agreed. After a few preliminary questions, LE asked for Ahmad’s driver’s license and the rental agreement for the vehicle. Driver produced the documents. LE then asked for consent to search the RV. Ahmad agreed, but LE did not immediately conduct a search. Instead, he called for a K-9 team. The team arrived a few minutes later, and Ahmad agreed to a K9 sniff of the RV. The K9 quickly alerted. At that point, about 15 minutes into the encounter, driver was detained while LE searched the RV, where a large quantity of marijuana was discovered.

The court held that driver expressly consented to the search of the RV as well as the external dog sniff. Driver, however, contests the voluntariness of that consent, arguing that he was unlawfully seized at the time he gave it. The question, then, was whether a seizure occurred before LE asked driver for permission to search, vitiating his consent.

The court found that driver’s encounter with LE was consensual and did not become a seizure until the K9 alerted and occupants were detained while the RV was searched. The entire encounter from initial questioning to driver’s eventual arrest occurred in a public place. LE spoke in normal, conversational tones and made no verbal commands; he never raised his voice, used a hostile tone or drew his weapon. Driver was not physically touched, and his movement was not otherwise constrained. There was neither a “threatening presence of several officers” nor a “display of weapons.” LE was the only officer on the scene until the K9 team arrived, by which time driver had already consented to the search. Most importantly, LE informed driver that he was free to leave and never indicated otherwise until after the K9 alerted. Therefore, driver was not seized until after the K9 alert.

Driver then complained that LE’s possession of driver’s license and rental agreement, documents without which he could not leave, was a de facto arrest. However, precedent made it clear that LE’s retention of a suspect’s identification does not necessarily transform an otherwise consensual encounter into a seizure. What’s important is how long and under what circumstances the suspect’s identification documents were retained. Here, LE held the driver’s license and the RV rental agreement for only a few minutes before driver consented to the search, hardly an unusual length of time. And when weighed in the balance with all of the other circumstances, the court held that LE’s brief retention of driver’s documents did not transform this otherwise consensual encounter into a seizure. Driver’s consent to the search of the RV was therefore voluntary.

Note: Consent is always available as an option and it worked out well here. Keep in mind, though, that consent can be withdrawn or limited by the subject at any time.

Milton v. Belmar (Missouri 2021) 2021 U.S. Dist. LEXIS 244658
Excessive Force; Qualified Immunity

Around midnight on March 24, 2019, Milton, who was homeless and unemployed at the time, attempted to break into a house. Attached to the house was a screened-in three seasons room.

Milton used a pry bar on the kitchen door. She also removed a screen from a window leading into the house and tried to gain entry. After attempting to break in, Milton crawled under a large, black grill cover and went to sleep in the three-seasons room. The grill cover was large enough to cover her completely.

The house was vacant at the time of the break-in, but the homeowner had a remote security device in the house. The homeowner reported to 911 and the police that she heard banging and voices in the house through her remote security device.

LE were dispatched to the residence. They understood from the 911 dispatcher that the house was vacant and a burglary was in process, taking place by one or more persons.

LE and a K9 started the search of the house outside the three seasons room. It was dark outside, and LE were concerned that someone could be lying in wait and would have an advantage over them.

While they were on the deck, the officers looked into the three seasons room. LE detected evidence that someone had tried to break into the house. There were also wet footprints. LE did not see Milton asleep under the grill cover. She was up against the wall closest to where LE were standing on the deck.

LE decided to search inside the house. Handler made the decision to deploy his K9 to search the house for the following reasons: (1) there were likely multiple suspects committing a burglary, (2) the suspects were likely in the home, and (3) the inherent dangers and risks to officer safety of performing a close quarters search in the dark interior of a building. Handler was also concerned that in searching the home, the burglary suspect or suspects would have a tactical advance over the officers.

The attached garage was searched first. Before entering the house from the garage, handler gave a K9 announcement. Handler waited ten to fifteen seconds after his warning to give anyone in the house a chance to surrender, but no one did. Handler then commanded K9 to search the first-floor rooms before LE did. More announcements were made.

LE entered the three seasons room from the kitchen door and saw the grill cover. He thought someone might be under the grill cover, which was about four feet from the kitchen door, and ordered “show me your hands.” Milton did not move or show herself. Milton testified she was asleep the whole time, which LE does not dispute. It was decided to utilize the K9 as burglaries are dangerous felonies, said burglar could escape into the neighborhood, and the K9 deployment was the most appropriate and safest of the less-lethal options.

After another warning, K9 was released and began his search of the three-seasons room. K9 sniffed the grill cover and bit Milton’s face. Milton admits she was sleeping until the time K9 bit her. LE noted a hammer and a knife near Milton.

Milton put both of her hands into and on K9’s mouth. K9 ripped the flesh of Milton’s jawline. Handler did not immediately call off K9 because Milton was not secured. Multiple loud and clear commands to stop resisting were given. Milton continued to use her hands to get the K9 off of her face and legs. She also kicked K9. LE determined that Milton was so distracted fighting K9 that they took control of Milton and K9 was removed. Milton had a box cutter and blades in her pocket.

Milton alleged a section 1983 claim of excessive force claim in violation of the Fourth Amendment against handler. Milton claims handler released K9 without a warning, which was in violation of her Fourth Amendment rights. Milton alleges there were no exigent circumstances that would allow for the omission of the safeguard warning, allowing her the time to surrender unharmed. Handler argued the undisputed evidence shows he gave a number of canine warnings, including before K9 entered the three-seasons room where Milton was hidden and moves for a ruling of qualified immunity.

The court held that handler was entitled to summary judgment on the basis of qualified immunity. Here, Milton by her own statement was asleep prior to being bitten by K9. Therefore, she could not competently testify about whether a warning was given. Handler, on the other hand, had several LE officers testify the warnings were given. Therefore, qualified immunity applied.

Note: This appeared to be a “hail mary” type of argument by Milton because Milton was hemmed in by the fact that she testified she was asleep until the K9 bit her. Had she testified that she heard the warnings but did not respond, qualified immunity would have applied here too. This is a good example of given warnings where other LE can hear them so that when the lawsuit is filed, you have more than one LE testifying to the fact that warnings were given.

Lewis v. State (Louisiana 2021) 2021 La. App. LEXIS 2053
Traffic Stop; Currency Sniff

LE stopped Lewis because he crossed over the center lane of travel several times within a short distance. The car had a Texas plate. Lewis appeared nervous and said he was picking up his cell phone when he swerved. Lewis was ordered out. LE asked about his travel plans while dispatch informed him that Lewis had been arrested several times for narcotics offenses. Lewis claimed to have a few thousand dollars from winnings at a casino. Lewis was Terry frisked and LE had his K9 perform a free air sniff of the vehicle. LE found over $40K. LE also learned that Lewis’ cousin was a known drug violator. Lewis had no receipt for the winnings, but had a motel receipt which listed the cousin as the purchaser. The cash was seized as proceeds from drug trafficking. Later, at the station, K9 alerted to the currency.

Lewis complained that he had been stopped without justification. However, he admitted to the fact that he had not followed proper procedure in filing his objection to the forfeiture. The trial court found that the State had met its burden for forfeiture. Lewis appealed.

The appellate court held that, based on the totality of circumstances, the State demonstrated credible evidence that the money was probably drug related. Also, the court held that precedent has found that an alert by a trained K9 establishes probable cause to search for evidence of drug contraband. Therefore, the State satisfied its burden of establishing probable cause for the forfeiture of the funds.

Note: There was no direct challenge on prolonged detention. By abandoning the traffic investigation to proceed with a K9 sniff, LE would need to be able to articulate reasonable suspicion of other crimes (drug trafficking here) to expand the timeline to provide for a K9 sniff. Here, the court probably would have ruled that Lewis’ demeanor and inconsistent information as well as his criminal history would have provided that additional reasonable suspicion. Make sure when you are in this situation that you can address all avenues of admissibility in your report and on the stand.

Rosenbaum v. City of San Jose (California 2021) 2021 U.S. Dist. LEXIS 245185
Excessive Force; Qualified Immunity

This case arose from a domestic violence incident reported against Rosenbaum. It was alleged that Rosenbaum’s girlfriend reported that he had strangled her, scratched her, pulled her hair and used body force to hold the victim down while licking her face. LE noted that girlfriend had corresponding injuries and that Rosenbaum had a violent past with her.

Rosenbaum claimed he had no knowledge of what his girlfriend reported and was surprised to see LE in his home pointing guns at him. He claimed to have raised his hands as per orders and instead of coming down the stairs as instructed, he repeatedly asked what was going on. LE warned that if he did not comply, a K9 would be deployed. Rosenbaum continued to refuse to come down the stairs. A K9 was then deployed even though he had his hands up and he was not threatening LE. He then claimed that the K9 bit him and was allowed to continue to bite for about 20 seconds.

Rosenbaum filed civil rights claims alleging that the bite of the K9 and the duration of the bite was excessive force. He also filed a Bane Act violation and negligence and battery claims.

The appellate court first addressed LE’s qualified immunity claim. LE was confronted with a violent man (based on the statement of the girlfriend, her visible and consistent injuries and her claim of previous abuse) who refused lawful orders to come down the stairs and ignored warnings of a K9 being deployed, who was standing at the top of a dark staircase and it was unknown whether he had access to weapons. The court therefore held that, given the fact that there was no Ninth Circuit or Supreme Court case law as of September 2019 that would have clearly established that deploying a K9 on an uncooperative person suspected of committing a violent crime who does not comply with repeated police instructions after repeated warnings that a K9 would be deployed would constitute an unreasonable use of force, handler had qualified immunity for deploying his K9 to detain Rosenbaum.

The court then addressed the duration of the bite. The court first held that the force applied was severe as the K9 was allowed to maintain the bite for 20 seconds on a person who was laying on his stomach and received severe injuries (this was based on Rosenbaum’s version, which the court must take as true at this stage of litigation). Because the 9th Circuit had previously held that an over 20 second bite of a suspect without LE doing anything but encouraging the K9 for 10-15 seconds of the bite was unreasonable, the court here held that qualified immunity did not apply to the duration of this bite. The first Graham factor was in LE’s favor because of the violent allegation against Rosenbaum. However, it was clear in Rosenbaum’s pleadings that he was not armed and was not threatening LE. He was also facing several armed LE who were pointing their guns at him. Also, after the bite, he was laying on his stomach and was completely unarmed and unresisting and was surrounded by LE pointing guns at him. Finally, for the duration of the bite, Rosenbaum was not resisting or fleeing. Since at least two of the factors weigh in Rosenbaum’s favor, qualified immunity was denied at this stage.

The court went on to hold that Rosenbaum had not alleged enough facts that would merit a Monell claim against the city. The fact that bites from K9s happen more often in San Jose than in San Francisco does not support an inference that all (or any) of those bites were unconstitutionally excessive uses of force. Moreover, there are instances in which a “bite and hold” policy can be constitutional. There are instances in which the deployment of a K9 is pivotal to protect officer safety, particularly when a K9 can be used to search a dark area in which a possibly armed suspect is hiding. Additionally, allowing LE to effectively locate and disarm a hidden suspect with a K9 can prevent officers from needing to use deadly force, such as firearms. If a “bite and hold” policy were found unconstitutional, LE might need to enter dark and dangerous situations without the benefit of a K9, which could elevate the level of force used. In such situations, both suspects and officers could be presented with more danger.

State law claims of battery and battery survive for the duration of the bite claim.

Note: This was a pretrial motion in which the court was required to rule assuming Rosenbaum’s allegations were true. In addition, the bite itself was ruled to be protected by qualified immunity, leaving only the duration of the bite as the issue. It will remain to be seen whether LE will be able to explain this duration in terms of subduing the suspect and/or LE safety. Also, this opinion has some great language about the necessity and effectiveness of K9s in general. 

Commonwealth v. Conner (Kentucky 2021) 2021 Ky. LEXIS 419
Traffic Stop; Prolonged Detention

LE pulled the vehicle in which Connor was a passenger over for swerving. He remembered Connor from a previous stop and believed he had been involved previously with methamphetamine. He also observed Connor shoving a plastic bag under the back seat. Based on these factors, Connor testified he was now investigating a drug offense. LE then told Connor of his suspicions and Connor refused consent to search. LE then called for a K9 team. While waiting for the K9 team, LE learned that Connor was the subject of an arrest warrant. Connor was taken into custody on the warrant. The K9 team arrived 31 minutes after the stop and alerted.

The appellate court found that the trial court made findings that were not supported by the facts introduced at the hearing. They then made their own factual findings based on the suppression hearing testimony and exhibits.

In this case, instead of diligently pursuing the legitimate purpose of the stop—investigating erratic driving—LE abandoned this mission when he repeatedly threatened the use of a K9 sniff if Conner did not consent to a search of the van and then made multiple attempts to locate a K9. By LE’s own testimony, he wholly abandoned the traffic infraction that prompted the stop in order to investigate Conner’s alleged drug trafficking and secure a K9. There was no evidence that the license check on the driver was ongoing during the time LE was threatening a K9 or waiting for one.

Even though a warrant existed for the arrest of Connor, the discovery of said warrant was not until after LE abandoned the traffic investigation. Therefore, the stop was prolonged unreasonably and the motion to suppress should have been granted.

In addition, there was no additional reasonable suspicion sufficient to justify the prolongation. The court held that an anonymous tip that Connor was involved with methamphetamine, that he stuffed something under the back seat and he earlier had stopped Connor for traffic violations and found out Connor had a criminal history for cocaine was not enough to provided additional reasonable suspicion of drug trafficking.

Note: LE admitted that he abandoned the traffic investigation which, since it was true, was the appropriate testimony. However, he could have continued to investigate the status of both Connor and the driver and would have found the warrant. Unfortunately, he gambled that he had enough reasonable suspicion to investigate drug offenses when he did not have it. Pursuing the traffic investigation while waiting for the K9 team is best practice. It’s also unusual for an appellate court to reject the findings of a trial court and use transcripts and records to make their own findings. Something was definitely up here. 

Commonwealth v. Parady (Viginia 2021) 2021 Va. Cir. LEXIS 354
Traffic Stop; Alert as Probable Cause

LE stopped a car in which Parady was a passenger. The driver was found to have a warrant. He was handcuffed but not searched as LE was alone at that point. In addition, LE discovered that the vehicle was displaying plates that belonged on another vehicle. LE knew the other passenger to be involved in controlled substances and that her license was suspended. LE noted Parady to be very nervous and acting erratically. LE requested back up and a K9. Back up arrived and driver was searched and put in a patrol car. The K9 team arrived and sniffed the vehicle and alerted. The other passenger indicated that Parady had controlled substances in her crotch. When Parady got out of the vehcle, she walked in a suspicious fashion with her legs pressed together. A black case was found with controlled substances inside. Parady claimed someone asked her to hold it and she did not know the contents.

The appellate court held that LE had probable cause to search Parady’s person based on the totality of the circumstances, including a passenger’s statement about Parady having contraband on her person, Parady’s nervous demeanor and awkward walking, the license plate returning to a different vehicle, and the K-9 dog alerting on the car.

Note: Nothing really new here, but the appellate challenge was solely on the search of Parady’s person which the court made short work of, citing the K9 alert as part of the probable cause for the search.

Mullins v. City of Colorado Springs (Colorado 2021) 2021 U.S. Dist. LEXIS 239225
Excessive Force; Qualified Immunity

According to Mullins, a large team of LE arrived at Mullins’ home to arrest him on nonviolent charges. LE ordered Mullins’ mother and sister outside. LE then gave warnings before they released the K9. LE “decided to threaten and use a police K9” to apprehend Mullins. They unleashed the K9 and sent it into his home “to find and bite [him].” Mullins was in the shower in an upstairs bathroom of his home and did not hear LE give any warnings before they released the K9. The K9 ran up the stairs and bit Mullins on the leg as he was exiting the shower. LE went upstairs and found the K9 continuing to bite Mullins’ leg. LE saw Mullins “naked, clearly unarmed, [and] not resisting or threatening the canine or any other officer.” Yet, for 20-25 seconds, LE did not stop the canine from continuing to bite Mullins. After the incident, Mullins was taken to the hospital, where he required multiple surgeries. The K9’s bite caused severe injury to his leg and caused him “massive blood loss.”

Because the court determined that the second and third Graham factors weighed heavily in favor of Mullins, and the crimes that he was being arrested for were nonviolent, the Court found that Mullins has sufficiently pleaded a Fourth Amendment excessive force claim.  (Court can only consider Mullins’ allegations in the complaint at this stage.)

Under these circumstances, the Court also found that Mullins has stated a claim for the violation of his Fourth Amendment rights arising from the length of time the K9 was permitted to bite Mullins.

As to qualified immunity, the Court finds that in 2019, a reasonable officer in this jurisdiction should have known that it was constitutionally impermissible to allow a canine to continue to bite Mullins for 20-25 seconds while he was lying on his bathroom floor, naked and unarmed, offering no resistance and with no ability to flee from police. As a result, the Motion as it pertains to Mullins’ personal capacity claim for failing to remove the K9 is denied.

Monell claims were dismissed because complaints allegations was insufficient to sustain a cause of action.

Note: This case sounds terrible from the standpoint of LE; however, it’s important to keep in mind that at this stage in the court proceedings, the court is required to take Mullins’ allegations as face value. Hopefully, the LE version of what happened is appropriate in light of the facts. Another good reminder that not only will the initial bite be subjected to judicial review, the duration of the bite will also be scrutinized. 

Blakes v. Superior Court (California 3rd App. Dist. 2021) 2021 Cal. App. LEXIS 1057
Traffic Stop; Odor of Marijuana as Probable Cause; Impound Search

Gang suppression LE was patrolling in their marked vehicle when they saw a vehicle with illegally tinted windows. A check of the license revealed that the owner had a suspended license. The vehicle took about 1/10 of a mile to react to LE’s lights and pull over to a legal parking spot. The driver’s window was down about 1/3. The driver was the owner who said he was trying to work with DMV on the issue. LE smelled the odor of burnt marijuana but could not determine when the marijuana was smoked (just before LE pulled driver over or prior to that). Driver had a previous firearm arrest. Driver was taken out of the car and Terry frisked; nothing was found. LE decided to tow the car based on the driver’s license suspension. The discretion whether to tow in these cases was left to the LE on scene. Here, LE said he decided on a tow because he thought there was something drug related going on. No impaired motorist investigation of driver was conducted. LE searched the vehicle prior to tow and claimed that search was an inventory search. This search revealed a marijuana roach in the ashtray and more in the trash can. A gun was also found along with many ID cards in others’ names.

The appellate court addressed whether there was probable cause for the search of the vehicle. The fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of probable cause in this case. Neither detective could determine if the marijuana was freshly burnt (is this even possible?), removing any support for an inference that driver was smoking the marijuana while driving. The totality of these circumstances did not amount to a ‘fair probability that contraband or evidence of a crime’ would be found in driver’s car.

The appellate court then addressed the inventory search, holding the inventory theory was invalid in this case. Because there was not an adequate caretaking function here, the impound was invalid. There was no evidence petitioner‘s car blocked traffic or was at risk of theft or vandalism; the Impala was legally parked in a parking space in a public parking lot. Although the detectives testified it was common (and thus part of the policy) to tow when the driver had a suspended license to prevent more driving under a suspended license, this policy does not provide a community caretaking function for the tow. The detectives did not afford petitioner the opportunity to call someone to drive his car to another location. More importantly, the evidence shows the impound decision was motivated by an investigatory purpose and this is not allowed by law.

Note: An impound search is an inventory search to protect both the interests of LE and the owner/driver of the vehicle (so neither party can claim there was any item taken or placed in the car at a later time). Here, the court said there must also be a community caretaking function as well, but interestingly, they do not cite a law that requires that. However, because they found that the impound search was a pretext for a drug search, this search was illegal. If you are impounding a vehicle and doing an inventory search, make sure you are following your agency’s requirements to the letter and that you actually inventory the car. Contraband found during a valid inventory search is admissible.

United States v. Moton (Alabama 2021) 2021 U.S. Dist. LEXIS 240717
Traffic Stop; Reasonable Suspicion; Consent; Prolonged Detention

During a drug investigation, LE received a tip about Moton’s residence. LE set up surveillance and saqw a Yukon left the residence. LE followed it to a laudromat. A K9 team was asked to stage on the laundromat where the Yukon stopped. When the Yukon left, LE pulled it over for traffic violations. The K9 team was on scene almost immediately. Moton, the driver, offered consent to a search. A K9 sniff resulted in an alert. A loaded handgun was found in the Yukon. Moton was a prohibited person. LE then conducted a knock and talk on the residence. Moton’s partner said LE could search the house for drugs, but it would be faster if they used a K9. They obtained written permission. Handler then arrived and confirmed with Moton’s partner that it was okay for his K9 to conduct a sniff. K9 alerted inside the house and a search warrant was obtained. Additional contraband was found in the house.

Moton challenged the search of the Yukon and the house. The court first held that LE had probable cause to initiate a traffic stop based on observing two traffic violations. LE’s question about anything illegal in the vehicle was permissible because it was made while Moton was searching for registration documents, therefore causing no extension of time. In addition, since the sniff occurred while the traffic investigation was still going on, the sniff was lawful as well. Moton’s consent was voluntary (indeed, he volunteered). Once the K9 alerted, probable cause was established.

As to the house, the court found the partner’s consent valid as it was voluntary, based on her response to LE and the handler as well.

Note: Nothing really new here, but consent was the key for both searches. It was interesting to read that the court addressed whether the question regarding anything illegal in the vehicle as occurring simultaneously with Moton searching for documents. This would appear to be best practice, as some courts have said that a non-traffic related question can be an impermissible extension of time. My usual concern about consent is applicable here; the consentor can withdraw or limit consent at any time.

United States v. Winder (Missouri 2021) 2021 U.S. Dist. LEXIS 240761
Standing; Consent; Alert as Probable Cause

A female called Nicki called a hotel three times to secure a room. The employee, McCullough, informed her that he could only book a room if someone came in with ID matching the credit card used. Winder then came in to pay for the room held for Nicki. McCullough confirmed that the ID and name on the credit card were Winder. Winder was told no partying or anything illegal was allowed and was assigned 209.

Housekeeping the next day informed McCullough that 209 was a stay over but no one answered her knock. McCullough told her to enter and she briefly entered and saw the beds were still made, unused towels, dry shower curtain, a cigarette butt in the ashtray and the receipt for the room. Later, McCullough re-entered the room to check on the status of the room as housekeeper was new and he wanted to make sure that the guests’ items were safe.

McCullough noticed the same things as the housekeeper but also noted that the box spring on one of the beds had been picked up and moved. He moved the box spring back and saw a bag at the bottom of the box spring and opened it to check what it was because in his experience items such as sex toys could be stored and forgotten by guests. Inside the bag was what McCullough believed to be methamphetamine. He locked the door of the room, leaving the bag inside on the floor and called 911. McCullough considered the room to be forfeited and the tenants evicted as the methamphetamine violated the terms of the lease.

LE was informed of McCullough’s findings. LE asked for permission to enter 209 and McCullough gave it. LE saw inside the open bag and noted a ammunition magazine and baggies of suspected methamphetamine. LE looked in the bag, also found a firearm and rendered it safe. A K9 team entered and alerted on the bag. LE secured the room awaiting a search warrant. Once the search warrant was secured, LE re-entered the room and seized the methamphetamine and gun.

LE then saw Winder and a female arrive and attempted entry to 209. They could not get in as McCullough had re-keyed the lock since he considered them evicted. After discussion with McCullough, they left the hotel. They were then pulled over by LE and additional contraband including a gun was found.

The court held that Winder was justifiably evicted once McCullough found the methamphetamine as a state statute allows a hotel to evict a person who is using the premises for illegal purposes. In addition, the court found that when a person rents a room in a hotel, they give implied permission for housekeeping, etc. to come into the room. No notice of the eviction is required.

The court went on to hold that since Winder was evicted, control of the room reverted to Mr. McCullough as the hotel manager, and he had both actual and apparent authority to consent to LE’s entry to the room. Having been evicted, Winder lacked standing to contest LE’s entry (and search) of the room with the hotel management’s permission on Fourth Amendment grounds.

LE entered the room legally with McCullough’s consent. The incriminatory nature of the firearm and methamphetamine was immediately apparent, and later confirmed by K9 alert and the open bag was observed in a place (on the floor between the two beds) where LE had the right to be based on McCullough’s consent. Because the K9 was present under the consent of McCollough, the sniff provided probable cause for the search of the bag.

Note: Standing is a threshold issue in court. A defendant must demonstrate that he has a privacy interest in the place or thing searched such that society is prepared to honor that privacy interest. There is no privacy interest in a room where he has been evicted. In addition, a sniff is not a search but an alert provides probable cause. There were several theories that supported admissibility here. Also, LE obtained a warrant in an abundance of caution, which although not legally required, which shifted the burden to the defendant to prove the warrant was issued without probable cause. All in all, a good outcome from good police work and good community relations.

State v. Moyer (Minnesota 2021) 2021 Minn. App. Unpub. LEXIS 958
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Fruit of the Poisonous Tree

There were two traffic stops of Moyer, whom LE believed was involved in drug trafficking. Based on that investigation, LE called for a K9 team which alerted on the vehicle. A search of the vehicle revealed an incoming text message that Chuck was going to meeting with Moyer soon. A large amount of cash was also found. Moyer was released from the scene and LE set up surveillance at the casino where Moyer had been observed conducting transactions that looked like drug trafficking. A second traffic stop was made for speeding and Moyer was removed from the vehicle once the K9 team arrived. Meanwhile, the person with whom Moyer met in the casino was also stopped and told LE that he was helping Moyer out of a bad situation and to escape the cartels. He had marijuana. A K9 sniff of Moyer’s vehicle resulted in an alert. Moyer’s person was searched and a large amount of methamphetamine was found on Moyer’s person.

Moyer claimed that both stops were unlawfully extended to allow for a K9 sniff. The appellate court held that the first stop was unconstitutional because there was not enough probable cause and that the K9 sniff was performed on the basis of a hunch testified to by LE. However, the second stop was lawful because Moyer had met with another person in the casino who said that he was helping Moyer out and that person had illegal drugs in possession. Moyer denied meeting this person. These facts were known to LE after the first stop and not as a result of the first stop. The court then considered if these facts were enough to provide reasonable suspicion such that the K9 sniff was warranted.

Based on the totality of the circumstances, the facts available to LE, and the reasonable inferences to be drawn from those facts, the court concluded that a reasonable, articulable suspicion of drug-related criminal activity justified the second K9 sniff and that the narcotics in Moyer’s sweatshirt pocket were obtained by means sufficiently distinguishable from the first K9 sniff to be purged of its unconstitutional taint.

Note: Interesting case. This court was willing to parse out what information LE had other than what was discovered in the first traffic stop. (Also, Moyer did not challenged the legality of the second stop). However, another court may not be so willing to do so, given that LE called the casino after gaining information from Moyer’s cell phone which was searched during the first stop (if so, then the fruit of the poisonous tree doctrine would preclude evidence from the second stop). Best practice is to make sure you have reasonable suspicion that is completely divorced from the previous stop or to perform the K9 sniff during the pendency of the traffic stop.

United States v. Johnson (Maryland 2021) 2021 U.S. Dist. LEXIS 237720
Traffic Stop; Odor of Marijuana as Probable Cause; Inevitable Discovery; Search Incident to Arrest

Johnson was stopped for tinted windows. LE asked for a check on the registration of the vehicle because it showed a temporary Virginia plate. LE then approached the vehicle and when Johnson opened the door, a strong odor of marijuana was detected. There was also a substantial amount of loose marijuana in the car and a baggie of marijuana as well. The court held that this smell and observation provided probable cause to search the vehicle. A ghost gun was found and Johnson was arrested. A search of Johnson was authorized as incident to arrest even though the ghost gun was found after Johnson was handcuffed and searched (a baggie of marijuana was found on Johnson). This was because LE testified that had he conducted a limited pat-down of the exterior of Mr. Johnson when he stepped out of the car (instead of handcuffing him and searching the interior of his jacket pockets) and not found any marijuana in excess of 10 grams (the threshold differentiating criminal versus non-criminal possession in Maryland), he still would have searched the interior of the automobile and its contents, based on the strong smell of marijuana detected as Mr. Johnson exited from the car. Thus, LE’s testimony established by a preponderance of evidence both elements of the inevitable discovery doctrine: first, that LE legally could have uncovered the marijuana and ghost gun from inside the automobile (based on probable cause to search the vehicle due to the strong smell of marijuana), and second, that he would have searched the car even if his search of the person of Mr. Johnson had not revealed the 30 gram baggie of marijuana. Because the search of the automobile provided probable cause to arrest Mr. Johnson, his lawful search incident to that arrest and ultimate discovery of the 30-gram baggie of marijuana on his person was inevitable, and the evidence recovered from his person also is admissible.

Note: Maryland has legalized medical use but not recreational use. However, possession of less than 10 grams has been decriminalized.

United States v. Reed (Alabama 2021) 2021 U.S. App. LEXIS 35565
Traffic Stop; Odor of Marijuana as Probable Cause

Reed was stopped for speeding. LE recognized Reed from previous encounters. As LE approached, he detected the strong and distinct odor of marijuana coming from the car. Reed was asked out of the car, placed in handcuffs and read his Miranda rights. In plain view, LE saw drug paraphernalia. LE then searched the car and found methamphetamine, marijuana, pills, paraphernalia and a prohibited weapon.

The appellate court held that the search was supported by probable cause supplied by the smell of marijuana detected by LE.

Note: Alabama and the federal system have not legalized marijuana for any reason.

United States v. Lopez (Texas 2021) 2021 U.S. Dist. LEXIS 230712
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Reliability Foundation

During a traffic stop for speeding, LE noted inconsistencies in the occupants’ stated reasons for travel which to him indicated drug trafficking. Consent was denied so LE called for a K9 team. K9 alerted and 17 pounds of fentanyl were found.

Lopez filed a motion to suppress and claimed that LE unreasonably detained him ( Lopez claimed it was a pretextual stop) and that the K9 was unreliable.

The appellate court first held that the initial stop was justified by the violation of the speed law by Lopez. Then, the court held that the totality of Lopez’ words and actions were sufficient for LE to reasonably suspect that Lopez was trafficking narcotics and to subsequently detain Lopez after the initial traffic stop concluded. Specifically, the Court finds the following evidence relevant and persuasive: 1) Lopez and passenger told LE conflicting stories when he questioned them about their travel plans; 2) Lopez initially hesitated when asked about their travel plans, and then stated he and passenger were travelling from California to Texas to “chill with friends,” but could not state with specificity where they were headed — even though he was driving; 3) Lopez stated he was travelling with only $200, a statement which LE testified aroused his suspicion, as $200 is a small amount of money to carry for a cross-country trip; 4) Lopez stated that he and passenger had travelled all night which is consistent with narcotics traffickers; 5) passenger was very nervous although he had been told that LE was only issuing a warning; 6) passenger said they were headed for South Carolina, where they would await further instructions from a third party; 7) they were travelling on 1-40, a corridor for narcotics trafficking; and 8) Lopez was wearing a Pablo Escobar shirt. The court held this was enough reasonable suspicion to extend the traffic investigation into a drug trafficking investigation and to extend the time to include a K9 sniff, which was reasonably related to the drug trafficking investigation.

Lopez then complained that the questions asked by LE were inappropriate and not part of the traffic investigation. The court held that here, Lopez misunderstood the application of  Rodriguez. LE may ask questions on subjects unrelated to circumstances that caused the stop, so long as these unrelated questions do not extend the duration of the stop. LE asked questions and received the answers to those questions during the regular course of the initial stop. The preponderance of the evidence supports the Government’s argument that LE developed reasonable suspicion of additional narcotics trafficking during the initial stop. This is distinguishable from the facts in Rodriguez where the officer developed reasonable suspicion after the stop had concluded.

Lopez then attacked the reliability of the K9. The court held that the K9 team successfully completed training and certification requirements. K9 never failed a certification single blind test and had never had an unsatisfactory rating. In addition, the K9 team completed monthly training scenarios for a minimum of 8 hours a week and bimonthly performance evaluations.

Lopez then tried to convince the court that since the K9 team trained with “pseudo-narcotics,” the K9 was alerting to some scent other than narcotics. However, they offered no evidence in support of this claim.

The court addressed the alert behavior, holding that alerting behavior is unique to each K9 that the handler must interpret. Lopez’ expert did not contest this issue.

Lopez argued during the hearing that the K9 is not trained to detect fentanyl and therefore handler must have queued the K9 to alert. The court held that the K9’s inability to detect fentanyl was irrelevant. The  Supreme Court and the Fifth Circuit have held that probable cause to search a vehicle based on a K9 sniff exists, even when K9 alerts to a substance that is not uncovered in the search. Additionally, there was marijuana found in the vehicle and both occupants admitted to recently smoking marijuana. This could account in the K9 smelling and alerting to the residual odor of marijuana.

Note: This defense expert brought up a bunch of issues in a shotgun style approach. However, the defense attorney did not realize what evidence he was required to put on to support the defense expert’s assertions so the expert went down in flames. It’s good to be aware of where the defense will attack so that you can be prepared when your cases go to court.

United States v. Sapp (Tennessee 2021) 2021 U.S. Dist. LEXIS 230871
Odor of Marijuana as Probable Cause;

LE was conducting surveillance on Sapp as part of a drug trafficking investigation. LE believed they saw Sapp engage in several hand-to-hand narcotic transactions. They were able to confirm these transactions by contacting the buyers. Sapp had a warrant for which he was subject to arrest. LE followed him to a package store where he shipped something. He was contacted and reeked of marijuana. He had no contraband on his person. He claimed he had no car, even though he drove up in a car which was still running with keys in the ignition. LE then searched the car, finding a gun, marijuana residue and $924 in cash. A search warrant was then issued for his residence where more controlled substances and firearms were found.

Sapp filed a motion to suppress and the government claimed that Sapp had abandoned his car so that he no longer had standing to challenged the legality of the search of the car. The appellate court did not buy that argument, even though Sapp said he “didn’t have no car” (sic).

The court then moved on to whether the search was supported by probable cause. Sapp made the distinction that since the only odor of marijuana was detected from Sapp’s person rather than the car, this was not enough to provide probable cause to search the car. The court held “[t]here is no reason to believe [Sapp] was smoking marijuana in this vehicle or conducting narcotics transactions from this vehicle such that there was a fair probability that the vehicle contained marijuana or marijuana paraphernalia.” LE only smelled marijuana on Sapp after he left the store; there was no testimony as to the strength or type of odor; no LE saw Sapp smoking in the car although they were watching him the whole time from his residence to the package store. The court rejected using the two confirmed buys as any part of probable cause to support the car search.

The search warrant was upheld, however, based on the additional investigation that was not a product of the arrest of Sapp and the search of his vehicle.

Note: This result is puzzling to me. Tennessee only allows medical marijuana in very limited medical circumstances and does not allow any recreational use. Neither does the federal system. Given that LE had good, current information of drug dealing by Sapp, to throw the search out because LE couldn’t cite facts that the smell of marijuana was coming from the car as opposed to the person of Sapp seems odd. In fact, the court used these same facts to support probable cause for the residence. Since the same standard (probable cause) is necessary for both searches, both searches should have been allowed. Very strange.

Thimes v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 685
Investigatory Stop; Reasonable Suspicion; Prolonged Detention

A defense attorney told LE a client would be calling them to report information concerning illegal drug activity but the client wanted to remain anonymous. This informant told LE that an older Black male (he gave additional descriptors) would be arriving on the Greyhound bus with 100 grams of fentanyl. The informant called back to say that the bus had been cancelled and that the trafficker would take the bus the next day on the same schedule. LE confirmed that a subject meeting the description was on the bus at a town midway through the route. LE met the bus as it came into town. Thimes came off the bus and he matched the descriptors, including the blue bag that allegedly contained the fentanyl. Thimes got into a taxi which LE followed and stopped. Thimes was asked to get out and provide ID. A K9 team was called in and it alerted to the taxi. The blue bag was in the taxi and found to contain suspected narcotics.

Thimes complained that the investigatory stop of the taxi was not supported by sufficient reasonable suspicion that criminal activity was afoot. An anonymous tip can be the basis of sufficient reasonable suspicion when that tip exhibits sufficient indicia of reliability. Here, the descriptors of the appearance of the suspect as well as the correct information regarding the suspect’s travel were sufficient indicators of reliability.

Thimes then complained that the stop was unduly prolonged to wait for a K9 team to arrive. However, the court held that the purpose of the stop was to determine whether the blue bag (as described by the informant) in the possession of Thimes contained illegal drugs. A K9 team had been put on standby earlier in the day and a K9 sniff would be the least intrusive way to determine the existence of illegal drugs. In addition, the court held, a valid investigatory stop for a reasonable suspicion of drug trafficking could certainly contemplate a K9 sniff. Since there was no record of how long it took for the K9 team to arrive, the court could not assess the Thimes’ claim of unreasonableness of the wait time. Motion to suppress was denied.

Note: Nothing really new here, but a good reminder that if you have reasonable suspicion of other crimes, you can detain on that reasonable suspicion alone, just like a stop for a traffic violation.

United States v. Covington (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 232510
Alert as Probable Cause; Cueing; Reliability Foundation

Covington was a member of a drug trafficking organization and LE was conducting an on-going investigation. An informant told LE he had purchased ounce-level cocaine from Covington. He also made a successful controlled buy for LE from Covington. Covington stopped at a storage unit prior to contacting the informant for the controlled buy. From the storage unit, Covington called the informant and asked if he had a digital scale, leading LE to believe that the storage unit may be a place where Covington concealed his narcotics. LE obtained a search warrant for the storage unit records and discovered it was held in Covington’s name. A K9 was then brought in to sniff the row of storage units and the K9 alerted to Covington’s unit and showed interest in a neighboring one (probably scent from Covington’s unit being blown that direction). The search warrant affidavit stated that a police K9 alerted to the storage unit but did not supply any information about the reliability of the K9.

Covington challenged this affidavit on several grounds. He contended (1) K9’s training was inadequate and he was an unreliable narcotics detection K9; (2) his alerts were ambiguous; and (3) handler was biased towards the unit that he knew was Covington’s and favorably interpreted K9’s behavior as an alert towards that unit and/or cued K9 to alert at that unit.

This K9 was certified at the time of the sniff and had been certified since 2011. The court found that this K9 was experienced (8 years together with handler) and had spent about 80% of his career on narcotics investigations and that the standard used to certify K9 was appropriate. Handler testified that once he gave the command to conduct a sniff, he followed where K9 led, encouraging K9 by repeating the command. He let the K9 follow his nose but used verbal and leash corrections to maintain control and to keep K9 out of harm’s way. K9 was an aggressive alert K9.

The court held that there was no indication of of bias or cueing during the sniff in this case. The target unit was the last in the row of units sniffed and K9 only alerted on Covington’s unit. K9 did sniff all units. Handler tapped the door of neighboring unit, in which K9 showed some interest, to refocus K9. After sniffing the neighboring unit again, K9 ultimately went back and scratched the door of Covington’s unit. The court noted that at the time of the alert, the leash was slack and handler had made no verbal cues or corrections. Handler tested the alert by tapping a neighboring unit which K9 sniffed. K9 then returned to Covington’s unit and alerted again. At this point, K9 was rewarded with his toy.

The court upheld the affidavit based on this record.

Note: Because Covington did not identify the issue that K9’s reliability foundation was not addressed in the affidavit, LE got a good result. The better practice is to include both the handler’s and the K9’s “hero sheets” as attachments to or copied and pasted into the affidavit so that the court can make its finding easily. Generally, a court cannot supplement the affidavit with information that was not included (in “the four corners of the document”).

State v. Brunk (Ohio 2021) 2021-Ohio-4270
Consensual Contact; Odor of Marijuana as Probable Cause

LE was surveilling a known drug residence and saw Brunk exit and get into his vehicle. LE followed him and saw him stop in the street, blocking traffic. LE approached and contacted Brunk. LE smelled marijuana during the contact. LE asked Brunk to get out and as he did, LE saw a baggie of heroin on the floor.

The court held that the contact was proper as Brunk was blocking traffic, an infraction. In addition, the odor of marijuana provided probable cause to search the vehicle. Therefore, the motion to suppress was denied.

Note: The federal system has not legalized marijuana and Ohio only allows medical use; however, Ohio has decriminalized possession of up to 100 grams.

Luttrell v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 1093
Traffic Stop; Alert as Probable Cause; Prolonged Detention; Brady Evidence

LE stopped Luttrell after he was staring at a patrol vehicle. LE also ran the plate which was registered to a different vehicle. Luttrell also failed to use a turn signal. There were two passengers. Luttrell said he was purchasing the car and handed LE an ID. LE then found out that Luttrell had never been issued a driver’s license. LE returned to the car and had Luttrell’s wife step out. She was Terry frisked by handler who had arrived on scene. After denying possessing any weapons, Luttrell was taken out and multiple knives were found on him. While LE continued his investigation, handler had his K9 sniff the car. K9 alerted. The car was searched pursuant to the probable cause provided by the alert. A gun, drugs and paraphernalia was found.

In appealing his conviction, Luttrell claimed the trial court erred when it admitted evidence found in Luttrell’s car. The appellate court first found that he waived his right to object to the reasons for the car stop by not challenging it at the trial level. The appellate court went on to rule that the stop was not unduly prolonged because it took LE 5 minutes to determine that Luttrell was unlicensed, and it took another 8 minutes until the K9 alerted.

Luttrell then raised a Brady issue, alleging that a news article was published nine days after the jury entered its verdict indicating that handler deployed this K9 during an investigation of another suspect who was severely injured, and the Indiana State Police were investigating allegations of excessive force. Luttrell claimed that the government should have disclosed that information because Luttrell might have been able to use that to impeach handler in his trial; specifically, a collateral attack on handler’s training, practices and certifications. The appellate court rejected that argument. While the government had a unilateral and independent duty to disclose impeachment evidence on all of its witnesses (if it exists), the court held that the role played by the K9 in this case had nothing to do with alleged use of force in the news article and that Luttrell would not have been able to draw a coherent line between the alleged excessive force case to his own case which only involved detection of controlled substance.

Note: The court made short work of the prolongation argument by addressing only the time expended during the traffic stop. While this is not the appropriate test per Rodriguez, it can be inferred by the fact cited that the traffic investigation was still ongoing when the K9 alerted. That is the correct test under Rodriguez. The court did mention that the car was properly towed because no one had a valid license (which could have resulted in a proper inventory search and/or an inevitable discovery argument).

The other thing to take away is that the defense is constantly mining the internet and other resources to try and find out things they deem useful in defending their clients. Be aware that your social media is going to be subjected to that same scrutiny even if you have your accounts on the highest privacy setting. Once it is posted on the internet, you have lost control of that data.

Rodriguez-Morfin v. Howell (Nevada 2021) 2021 U.S. Dist. LEXIS 235787
Scope of Consent

A confidential informant told LE that Rodriguez-Morfin was in possession of controlled substances in her vehicle. LE saw that Rodriguez-Morfin was following another car too closely so pulled her over. Rodriguez-Morfin signed a pre-printed consent form (in both English and Spanish) to search. A K9 then alerted to her car. The search did not reveal any controlled substances, but a later search revealed methamphetamine and a BB gun were found in a hidden trap in the car.

After conviction, Rodriguez-Morfin alleged that her civil rights were violated because counsel failed to move to suppress the methamphetamine on grounds that her consent to search was involuntary because she was not alerted to the search’s intent or scope and the use of a police service dog exceeded the scope of her consent.

LE testified that when he gave the consent form to Rodriguez-Morfin, he confirmed with her that she could read and write Spanish (she was Spanish-speaking). The form was in both English and Spanish. LE observed Rodriguez-Morfin read and sign the form. The form did not indicate the purpose of the search or indicate that a K9 could be used during the search. However, the form stated that the search “may include any luggage, containers or items located in the interior and/or exterior of the vehicle” and “any compartments which may need to be accessed by the use of tools” and that the signer understood that he or she had “the right to refuse to consent to the search.”

LE testified that Rodriguez-Morfin saw him retrieve the K9, but Rodriguez-Morfin did not ask about or object to the K9. Following the K9’s alert, LE testified he had “probable cause to believe there were narcotics in the car.” LE towed Rodriguez-Morfin’s vehicle because they “could not contact the registered owner of the vehicle, no parties present on the scene had a valid drivers [sic] license,” and they “knew with a fair amount of certainty there was a trap in the car” containing narcotics (and indeed there was).

Rodriguez-Morfin testified that she did not know the purpose of the search at the time she gave consent, did not know she could revoke her consent, and had no issue giving consent because she was unaware there were narcotics located in the vehicle. And Rodriguez-Morfin’s counsel testified he did not entertain any motions to suppress because he did not feel there was any basis to do so.

Rodriguez-Morfin did not dispute that she read and signed a consent form allowing her vehicle to be searched. In fact, Rodriguez-Morfin testified that she did not object to the search because she was unaware that there were narcotics in the vehicle. The consent form indicated that the search may include compartments which may need to be accessed with tools. The form also indicated that Rodriguez-Morfin could refuse consent, and, importantly, Rodriguez-Morfin did not object to or limit the search after seeing handler retrieve the K9. Based on this evidence, Rodriguez-Morfin’s consent was valid, was not limited in scope, and included the use of the K9. Because of this ruling, counsel would not have prevailed on the motion to suppress and therefore was not deficient in not bringing a suppression motion.

Note: This is the end of a long line of appeals in this case. The take away here is that if you have valid consent and there is no objection when a suspect sees you preparing your K9 for a sniff, you’re good to go. In this case, it would seem prudent going forward to have the possibility of a K9 sniff in the written consent. Otherwise, you’ll have to show that suspect had the opportunity to object prior to the sniff taking place (sees K9 and makes no objection).

United States v. Rutledge (South Dakota 2021) 2021 U.S. Dist. LEXIS 231342
Traffic Stop; Alert as Probable Cause; Collective Knowledge Doctrine

Rutledge was the subject of a drug trafficking investigation and was suspected to be in possession of methamphetamine. This was based on pen registers, informants, a local drug dealer’s phone, and tracking a cellular device assigned to Rutledge’s phone number (via search warrant). A plan was made to pull over the vehicle in which the cellular device was located. Rutledge was then pulled over in that vehicle for rolling through a stop sign. He and his passenger were very nervous. After supplying the appropriate documentation, Rutledge was taken back to the patrol vehicle while the documents were investigated. LE began writing a warning ticket, and asked questions of Rutledge as he did. Meanwhile, a K9 team arrived and alerted. Controlled substances and a firearm were found.

The appellate court first held that the traffic stop was properly supported by LE seeing the vehicle roll through a stop sign.

Rutledge then objected to the court applying the collective knowledge doctrine to his case. He complained that the stopping officer did not see him run the stop sign and that another officer did. Since the viewing officer shared his information with the officer that ultimately stopped Rutledge, the court held that the collective knowledge doctrine applied.

Rutledge then complained that the stop was unduly prolonged for the K9 sniff. The court held that LE’s authority for conducting a traffic stop ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. But when LE discovers information leading to reasonable suspicion of an unrelated crime, he may extend the stop and broaden the investigation. Here, the court held that there was no actual prolongation, and even if there was, LE had reasonable suspicion to extend the stop for the K9 sniff. He knew about the ongoing investigation and had 21 years experience as well as drug interdiction training. During the stop, LE saw in plain sight paraphernalia associated with methamphetamine, the drug LE knew Rutludge was suspected of trafficking and that the vehicle was a rental. In addition, both occupants were overly nervous. Rutledge refused to answer questions about his travels and his demeanor changed markedly when told a K9 was going to be deployed. The information from the ongoing investigation as well as LE’s observations at the stop added up to reasonable suspicion of drug activity.

Note: This court only went into the actual minutes expended when the K9 sniff started which is not the test outlined by Rodriguez. However, the court’s holding that any prolongation was supported by reasonable suspicion is enough to admit the evidence and deny the motion to suppress.

United States v. Camacho (Texas 2021) 2021 U.S. Dist. LEXIS 229674
Reasonable Suspicion; Collective Knowledge Doctrine; Prolonged Detention; Alert as Probable Cause

An apartment was the subject of a DEA drug trafficking investigation where LE determined that it was a drug selling and storage location based on informant information and that fact that the apartment was being used by a convicted drug dealer. LE saw Camacho pull up to the apartment with an empty bag and exit the apartment several minutes later with the same bag which now was weighted down with items.

Local LE was informed of the DEA’s possible need for assistance and were in the area. DEA asked local LE to assist by pulling Camacho’s car over. DEA followed Camacho and saw at least one traffic violation which was relayed to the local LE. But before the local LE were able to execute a traffic stop, the DEA observed Camacho pull into a motel parking lot, park his car, and walk toward the motel. About that time, local LE arrived at the scene and, under the DEA directions, approached Camacho and placed him in handcuffs on a curb near his car.

Approximately five to ten minutes later, a DEA K9 handler arrived on the scene with his drug-detection K9. Handler had also been waiting nearby the apartment and was receiving Camacho’s traveling directions via the radio. Handler directed the K9 as it conducted a free-air sniff of the exterior of Camacho’s car. The K9 alerted to the back left area of the car, indicating the presence of narcotics. Methamphetamine was found in the black bag which Camacho put in the trunk.

The appellate court first addressed whether local LE had reasonable suspicion to stop Camacho as he walked away from his car at the motel parking lot. Having observed Camacho commit a traffic violation, the circumstances, viewed objectively, would have justified LE pulling over Camacho. Under the collective knowledge doctrine, reasonable suspicion can transfer from officers with knowledge of the facts supporting reasonable suspicion to officers who actually stop the suspect as long as the officers are communicating. So, when the DEA tipped the local LE that they had seen Camacho commit a traffic violation, the reasonable suspicion possessed by the DEA officers then vested to the local officers under the collective knowledge doctrine. Moreover, the source of the tip was credible and reliable as the source was the DEA; the specificity was sufficient as the DEA relayed a description of Camacho’s car and his license plate information to the local officers; and the criminal activity was far from “stale.” Even if the officers “ulterior motive” was to catch Camacho for a suspected drug crime, that did not “strip [LE] of their legal justification” for the traffic stop.

The appellate court then addressed whether there was reasonable suspicion to conduct a K9 sniff of Camacho’s car. A K9 sniff is not a search requiring reasonable suspicion above that which justifies the initial stop. So, because Camacho was already lawfully stopped, the K9 sniff was justified because it did not prolong beyond the time reasonable required to complete the mission. Even if the K9 sniff prolonged the stop more than necessary to investigate the traffic violation alone, that delay was justified by the reasonable suspicion that Camacho had also committed a drug crime. The court held that the officers’ actions were reasonable in scope and duration to the circumstances justifying the stop.

Finally, the court addressed whether LE had the right to search the trunk. The court held that the trunk was lawfully searched as the alert by the K9 was sufficient probable cause to search the entire car.

Note: Nothing really new here but a good example of good police work in staging a K9 close by and communicating between agencies. There were additional issues regarding admissibility of other evidence, but those issues aren’t relevant to our discussion here.

United States v. Ferrusquia-Sanchez (West Virginia 2021) 2021 U.S. Dist. LEXIS 230017
Traffic Stop; Prolonged Detention

Ferrusquia-Sanchez was stopped for his plate not having a car registered to it (false plate) and for following too closely. LE noted that Ferrusquia-Sanchez did not speak English well and he provided a Mexican passport, driver’s license and additional foreign identification. LE then contacted ICE and sent them the documentation. ICE indicated they were familiar with Ferrusquia-Sanchez and that he had a history of firearm possession. ICE also confirmed that Ferrusquia-Sanchez was an illegal alien.

ICE sent an agent to the scene. While waiting for the agent, LE continued the traffic investigation and learned there was a warrant out for Ferrusquia-Sanchez for driving while suspended. Also, LE noted a shotgun shell on the floorboard of Ferrusquia-Sanchez’s car. A K9 team also arrived and alerted to the vehicle. No contraband was found but a loaded firearm and ammunition were found in the car. This took 11 minutes total. ICE arrived about 20 minutes later.

The appellate court found that LE had reasonable suspicion to pull the car over based on the false plate and the driver following too closely. In addition, LE was justified in contacting ICE regarding Ferrusquia-Sanchez in order to confirm his identity. While Ferrusquia-Sanchez claimed this was beyond the scope of the traffic investigation, the court held that the call to ICE was in furtherance of the traffic stop as LE was trying to confirm Ferrusquia-Sanchez’s identity which he could not do himself using the Mexican documents provided by Ferrusquia-Sanchez. The court compared contacting ICE to a check of a US driver’s license.

Finally, Ferrusquia-Sanchez complained that the stop was prolonged for the K9 sniff. The court found that since LE was still waiting for ICE to arrive on scene to confirm the identity of a possible illegal alien and was also waiting for confirmation of Ferrusquia-Sanchez’s warrant status while the K9 sniff was being conducted, there was no prolongation of the stop.

Note: Good police work in identifying this driver and pursuing follow up to make sure of his identity as well as his criminal history.