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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 2022 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are final. Sometimes a court will delay in finalizing a case and that causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.
As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.
Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.
(Disclaimer: I do not represent any individuals, handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)
MARIJUANA UPDATE FROM DECEMBER 2022 FOR JANUARY 2023 UPDATE
President Biden signed into law a bipartisan bill to expand researchers’ access to marijuana in order to study its potential medical benefits, representing the first stand-alone federal cannabis reform measure to become law in more than 50 years. This signals the fact that the federal government is moving toward legalization of recreational marijuana because at the moment, marijuana remains a Schedule 1 drug, which means it has no valid medical use. By allowing researchers to use marijuana in medical studies and trials, the hope is that they will find a medical use which will allows marijuana to be rescheduled which is the first step the federal government has telegraphed to be needed before legalization.
States that legalized recreational marijuana in 2022 are Rhode Island, Maryland and Missouri. Legalization is making inroads to the mid West now which is traditionally conservative on these issues. However, the long time media campaign by many groups have framed the marijuana argument in terms of it’s not harmful and makes people feel better, so it should be legal.
INDEX OF CASES REVIEWED FROM DECEMBER 2022 FOR JANUARY 2023 UPDATE
State v. Degrave (Wisconsin 2022) 2022 Wisc. App. LEXIS 1180 (Unpub.) – Traffic Stop; Prolonged Detention; Search Incident to Arrest
United States v. Smith (Alabama 2022) 2022 U.S. App. LEXIS 35691 (Unpub.) – Traffic Stop with Existing Probable Cause; Prolonged Detention
Mullins v. Liberty Twp. (Ohio 2022) 2022-Ohio-4350 – Traffic Stop; Sovereign Immunity; Excessive Force
People v. Staggs (Michigan 2022) 2022 Mich. App. LEXIS 7195 (Unpub.) – Traffic Stop; Prolonged Detention; Reasonable Suspicion
United States v. Guerue (South Dakota 2022) 2022 U.S. Dist. LEXIS 230025 – Traffic Stop; Prolonged Detention
State v. Byrd (Ohio) 2022-Ohio-4635 – Traffic Stop; Prolonged Detention
Stepp v. Brown (Florida 2022) 2022 U.S. Dist. LEXIS 227921 – Excessive Force; Failure to Intervene; Failure to Train
Aleman v. Riverside Cnty. Sheriff’s Dep’t. (California 2022) 2022 U.S. Dist. LEXIS 228055 – Excessive Force; Qualified Immunity
State v. Eastis (Idaho 2022) 2022 Ida. App. Unpub. LEXIS 358 – Traffic Stop; Alert as Probable Cause
State v. Walters (North Carolina 2022) 2022-NCCOA-796 (Unpub.) – Traffic Stop; Alert as Probable Cause; Legal Hemp v. Other Illegal Drugs as Probable Cause
State v. Cruz-Pineda (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 792 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Search Incident to Arrest
Rosenbaum v. Dunn (California 2022) 2022 U.S. Dist. LEXIS 224010 – Excessive Force; Qualified Immunity
State v. Jelani Adisa Harper (Ohio 2022) 2022-Ohio-4357 – Traffic Stop; Prolonged Detention
United States v. Tenorio (5th Cir. Texas 2022) 2022 U.S. App. LEXIS 33978 – Alert as Probable Cause; Border Search
State v. Rogers (Ohio 2022) 2022-Ohio-4535 – Reasonable Suspicion; Terry Stop; Prolonged Detention
Rose v. Officer Adams (Virginia 2022) 2022 U.S. Dist. LEXIS 226804 – Prison K9; Excessive Force
United States v. Barrow (Texas 2022) 2022 U.S. Dist. LEXIS 222085 – Traffic Stop; Reasonable Suspicion; Good Faith Exception to the Exculsionary Rule
Farris v. Culp (Washington 2022) U.S. Dist. LEXIS 222377 – Alert as Probable Cause; Cross Contamination; Qualified Immunity
Lall v. State (Texas 2022) 2022 Tex. App. LEXIS 8745 – Traffic Stop; Alert as Probable Cause; Prolonged Detention
Crabtree v. State (Indiana 2022) 2022 Ind. App. LEXIS 385 – Curtilage; Privacy Rights; Alert as Probable Cause
United States v. Chandler (6th Cir. Michigan 2022) 2022 U.S. App. LEXIS 33297 – Traffic Stop; Reasonable Suspicion
CASES REVIEWED FROM DECEMBER 2022 FOR JANUARY 2023 UPDATE
State v. Degrave (Wisconsin 2022) 2022 Wisc. App. LEXIS 1180 (Unpub.)
Traffic Stop; Prolonged Detention; Search Incident to Arrest
Degrave was stopped for speeding. LE spent several minutes gathering routine traffic-stop-related information from Degrave and her four passengers. He returned to his squad car and radio’d for a K9 while he also asked dispatch to verify the information provided by DeGrave and her passengers and to check for outstanding warrants for them. He then opened up an application on his squad car computer at 5:05 p.m. to create a written speeding warning.
The K9 team arrived while LE was typing the warning. There was a brief discussion between LE and handler at LE’s car’s window. The K9 then sniffed the vehicle and alerted. This occurred anywhere from 9 to 12 minutes into the stop. The citation was completed between 9 to 10 minutes into the stop. However, LE had Degrave exit the car at that point to explain the citation to her and have her sign it. Back up Terry frisked Degrave. He felt in her pocket what he believed to be drug paraphernalia. He asked what it was and Degrave handed it to him. It was a straw and residue of meth was found on it. The vehicle was then searched. After Degrave was handcuffed, she asked if an officer could get her cell from the car so she could make a call. Back up looked in her purse and saw a compact, which had meth residue on the mirror. The trial court found that the only delay was less than 15 seconds to ask for a K9 time to respond.
Degrave appealed, claiming the trial court wrongfully denied the two suppression motions. She contended that LE improperly: (1) extended the duration of a traffic stop to allow a “canine sniff” of her vehicle; and (2) exceeded the scope of a consensual search of the vehicle.
The appellate court addressed the first question; it held it was reasonable for LE to take four to five minutes to complete the written warning while also awaiting a response from dispatch, which was searching for the driver’s and passengers’ information. Second, it took LE fifteen seconds to call for the K-9 unit and advise the K-9 officer about the number of people in the stopped vehicle. That amount of time was less than the time between when the alert occurred—which was shortly before LE had completed the written warning—and when LE reasonably would have been able to exit the squad car, approach DeGrave’s vehicle, have DeGrave exit her vehicle, return her documents, issue her the written warning, and explain the warning to her.
The appellate court also held that it was reasonable to believe that a driver who had a straw with drug residue on it in her pocket could also have drugs or drug paraphernalia in a purse located in the vehicle. Such evidence clearly would be related to the arrest.
DeGrave argued that any search of her purse was an “unreasonable continuance” of the “probable cause” search of the vehicle that LE and handler conducted while back up was away from the scene. That probable cause search, however, was conducted prior to DeGrave’s arrest, and there was no testimony that it included a search of the contents of DeGrave’s purse. DeGrave provided no authority holding that a search incident to arrest cannot be conducted if another officer has already conducted a search of a surrounding area prior to arrest, authorized by a separate doctrine.
Note: In holding there was no wrongful prolongation, the court apparently decided that the 15 second delay was not material. However, it also appears the court found that the entire sniff and alert occurred before the conclusion of the traffic investigation. Some state appellate courts as well as federal courts are indicating that very small delays are not material, but a strict reading of the Rodriguez case would hold otherwise. Best practice is to request the K9 team while waiting for something you need for your traffic investigation (make the K9 team request after dispatch has started their searches on the investigation documents) or any other downtime.
United States v. Smith (Alabama 2022) 2022 U.S. App. LEXIS 35691 (Unpub.)
Traffic Stop with Existing Probable Cause; Prolonged Detention
During a large, coordinated drug trafficking investigation by the DEA, wiretaps and electronic communications taps were used on Smith’s phone and intercepted messages between Smith and White that indicated Smith was trafficking drugs. Based on the evidence from that investigation, particularly a message that indicated Smith would deliver drugs to White the next morning, LE conducted surveillance at both homes looking for Smith’s vehicle. More messages were received that confirmed Smith was holding and that he would be at White’s imminently. As soon as LE spotted the car, he pulled Smith over. This LE, a lieutenant, had participated in the investigation by listening to these messages in real time. However, Smith’s windows were tinted in violation of the law. Smith was overly friendly and showed signs of nervousness (shaking, heart beating fast and increasing nervousness, He also smelled of the chemicals associated with cocaine). LE told Smith he was going to write a warning for the tint and told Smith to get out. As Smith got out, LE asked if he had any weapons. He said he had a gun on his person. A quick Terry frisk revealed a gun and a cell phone.
After completing the warning, LE told Smith he was not free to leave because (1) the intercepted calls indicating that Smith would be delivering drugs to White, (2) Smith’s driving toward White’s home, (3) Smith’s behavior during the stop (e.g., overly friendly, nervous, breathing rapidly, visibly shaking, noticeable neck veins, dubious answers to simple questions), and (4) the smell of cocaine. When asked about cocaine specifically, Smith got even more nervous. When consent was not given, LE had a K9 team respond and sniff the vehicle. The K9 alerted but an hour’s search did not reveal any drugs. However, based on the intercepted messages, LE believed that there was a hidden compartment in the vehicle. The car was moved from its location on the road near White’s house (and because it was raining) to another location to be able to search more thoroughly. In preparation for the move, Smith was physically searched more thoroughly and the cocaine was found in his coat pocket.
Because of previous actions in trial court, the appellate court was only presented with one issue; whether the traffic stop was unlawfully prolonged. Here, the appellate court held that LE had ample reasonable suspicion to extend Smith’s detention to investigate whether Smith was engaged in drug trafficking based on the totality of the circumstances. Those circumstances included, among other things, intercepted calls indicating he would be delivering drugs to another person that day, his behavior during the stop (e.g., overly friendly, nervous, breathing rapidly, visibly shaking, noticeable neck veins, dubious answers to simple questions), the smell of cocaine, and the K9 alert. Therefore, Smith’s continued detention so that LE could move Smith’s car and safely conduct a better search was justified. Thus, the court affirmed the denial of defendant’s motion to suppress evidence seized from his person during a traffic stop conducted as part of a larger investigation into a drug trafficking organization.
Note: While a wall stop is often used in these situations, the investigators here did not rely on that as reasonable suspicion (even though LE did find that the windows were illegally tinted). Remember, if you have probable cause regarding crimes other than traffic violations, you have the ability to stop that person and detain them for a K9 sniff. The court didn’t address the collective knowledge doctrine because Smith didn’t raise it, but the court did mention that LE had been actually involved in the investigation which more than meets that doctrine’s requirements.
Mullins v. Liberty Twp. (Ohio 2022) 2022-Ohio-4350
Traffic Stop; Sovereign Immunity; Excessive Force
Mullins, through his employment with the fire department, has occasionally worked fire scenes where K9s were present, but never encountered one as a part of his job. Mullins was apprehensive around dogs, particularly large dogs and avoids them. Handler pulled over a truck for loud exhaust. LE arrived as back up. While running the identification information of the driver and the passenger, LE recognized the name of the passenger, Clifford Wright, as an individual with three outstanding felony warrants and an open case in Trumbull County. LE then observed Wright exit the passenger side of the red truck.
Although LE commanded Wright to return to the vehicle, Wright fled up. Handler shouted, “[d]og out,” in order to alert LE that K9 was being released from the cruiser, and K9 exited the police cruiser and began his pursuit of Wright. K9 and back up and handler chased Wright into the backyard of 922 Upland Avenue, where Mullins resides. While cleaning his grill, Mullins entered a shed on his property where he stores BBQ utensils. Mullins then saw Wright running up his driveway followed by handler, K9 and other LE. Wright was headed for the shed and Mullins waved him off. K9 was half a driveway behind Wright. Wright then ran into Mullins’ backyard, jumped the fence and fled down the driveway of a neighboring property. K9 almost had Wright as he jumped the fence, but missed, so K9 sat down at the base of the fence. Mullins said to LE that Wright went over the fence. Mullins heard a command in a foreign language. K9 then lunged at Mullins and bit him in the face and knocked him down. Mullins hit his head on a cast iron stove. In a combined effort, Mullins and handler were able to get K9 off. Mullins retreated into the shed and shut the doors but K9 was able to break free and was jumping on the door. Handler continued to give commands in a foreign language and LE told Mullins to stay in the “damn” shed. Mullins was finally able to run into the back door of his residence.
LE’s position is that Mullins was in the shed when they and K9 entered the back yard and they instructed him to stay in it. Mullins initially complied but then opened the doors and emerged. As a result, K9 lunged at Mullins, making contact with him and causing him to fall backwards. Neither LE or handler saw K9 bite Mullins. The chase continued and Wright was eventually apprehended several houses away.
Handler did not see any injuries that would be consistent with a K9 bite. Handler also stated that K9 was either on a leash or wearing an electric collar.
Mullins also alleged that LE entered his house looking for Wright. Mullins told that LE that he had been bitten by the K9. LE responded that K9 had all his shots.
After getting antibiotics and narcotics from the ER, Mullins drove himself to the police department to file a complaint. Initially, Mullins was questioned by the officer from the scene. When Mullins asked the officer why the dog did not follow the commands of the officer at the scene, the John Doe officer responded, “because sometimes the dog doesn’t hear me.” Realizing that the officer questioning him was the K9 handler from the scene, Mullins immediately terminated the interview and asked to speak to the K9 handler’s supervisor.
The supervisor informed Mullins that “[Mullins] just got a half bite.” The supervisor continued, “[y]ou ought to see what he did to the guy when he caught him. He chewed up his left shoulder.” The supervisor also informed Mullins that Wright lived a few blocks from Mullins’s residence, and Wright was trying to run to his house in order to elude the police. The supervisor observed no injuries to Mullins’s face or right arm, the locations where Mullins claimed to have been bitten by K9.
Mullins claimed that his injuries, both physical and mental, prevented him from working for 15 months. A knee injury was treated with surgery, but there was no evidence that the injury was from contact with K9. He also claimed a back injury for which he delayed seeking treatment. Ultimately, he was forced to retire early.
Mullins claimed these facts in his lawsuit against handler and the police agency:
1. Failure to announce that a dog was being released (citing [Liberty Township Police] Manual 309.2.13).
2. Failure to keep the dog under control.
3. K9 jumped at Mullins.
4. K9 made contact with Mullins at about the knee-high level.
5. While K9 allegedly may not have been trained to bite people in the face, he did just that (citing Mullins’ affidavit, which, contrary to the assertion in his opposition brief, does not have photographs attached).
6. Mullins has alleged other injuries to him, proximately caused by K9 (knee and back injury).
The government asserted that the agency and the handler were protected by sovereign immunity. The first tier in the test for sovereign immunity is whether the political subdivision is generally immune from liability because the alleged negligent acts of its employee occur in connection with a governmental or proprietary function pursuant to state law. The second tier is whether there is an exception to immunity of which there are five:
(1) the negligent operation of a motor vehicle by an employee who is acting within the subdivision’s scope of employment and authority;
(2) an employee’s negligent performance of acts with respect to the subdivision’s proprietary functions;
(3) the negligent failure to repair public roads and negligent failure to remove obstructions from public roads;
(4) negligence of employees that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function; and,
(5) when a section of the [sate] Code expressly imposes civil liability on the subdivision.
If the first tier survives, but then is found to be excluded by one of the exceptions, the third tier comes into play (not at issue here).
The appellate court held that the agency passed the first tier. The Township (agency that LE belonged to) was clearly a political subdivision as defined by the code. The court then found that no exceptions applied and specifically rejected Mullins’ claim that civil liability is expressly imposed upon political subdivisions and their canine handlers for injuries proximately caused by certified police canine as he did not provide any authority that would support such an argument.
Note: When Mullins showed up to lodge his complaint, he should have been treated as any other citizen; interviewed appropriately and pictures taken of where he claimed to be injured. All of the statements made to Mullins by LE in this case were unnecessary and further complicated the situation.
Mullins really didn’t mention or rely on the lack of warning by handler/LE. This clearly was a quickly evolving foot chase and the K9 was released immediately. However, it may have been possible for another LE to use his/her loudspeaker to alert the area that a K9 was being deployed and for citizens to stay in their homes. I don’t think that would have impacted the actual chase and it wouldn’t have been difficult to make that announcement. Food for thought.
People v. Staggs (Michigan 2022) 2022 Mich. App. LEXIS 7195 (Unpub.)
Traffic Stop; Prolonged Detention; Reasonable Suspicion
During an investigation involving an anonymous tip about drug traffic at a particular apartment, LE set up surveillance. LE saw Staggs leave the apartment and get into the back of a Silverado. Then he got out and went under the truck. Staggs got out from under and drove off. LE decided to follow to get the license plate and see if they could pull him over for a traffic violation. However, just as LE was able to get the plate, the truck stopped in the roadway. LE then initiated a traffic stop. Staggs asked why they were following him and said he pulled to the far edge of the roadway to allow him to pass. All of Staggs’ documents checked out, but he did have a notation that he was an “officer safety caution.” LE told Staggs to get out and come to the back of the truck where he was told he was not free to go because he had been stopped for impeding traffic. Staggs was then questioned. A K9 team was called out.
Staggs was told that a K9 team was on its way. He was Terry frisked and nothing was found. Questioned about drugs, Staggs showed LE a legal amount of marijuana. Staggs denied LE consent to search the truck. After a K9 alert, methamphetamine was found. The total time from stop to the arrival of the K9 team was 43 minutes.
The appellate court easily found that the stop was unlawfully prolonged, because the traffic investigation would have been completed long before the passing of 43 minutes. Therefore, the government had to prove that LE had sufficient reasonable suspicion of drug trafficking so that the traffic investigation could be expanded to include the drug investigation.
The prosecution specifically relied on the following as the new set of suspicion circumstances that justified prolonging the stop: (1) Staggs stopped his vehicle in the roadway, (2) Staggs was allegedly “very confrontational” with LE, and (3) Staggs admitted to delivering marijuana to a friend at the apartment being surveilled by the narcotics unit. Assuming for purposes of this appeal that Staggs did indeed commit a traffic violation, Stagg’s decision to stop his truck was not so evasive or erratic as to support a reasonable suspicion of criminal activity. LE’s patrol vehicle had become exceedingly close while following Staggs because he was struggling to observe Stagg’s license plate number. Staggs explained to LE that he pulled over to the side of the road so that LE could pass him. There were no other vehicles in the roadway when Staggs stopped his vehicle, and his vehicle did not actually impede traffic. And contrary to the trial court’s finding, Staggs did not “suddenly” stop his vehicle, but instead gradually slowed down and veered to the side of the roadway. Further, being closely followed by the police would be unsettling to an average motorist, and a motorist’s attempt to resolve that situation is not necessarily indicative of criminal activity. During the stop, Staggs was irritated and upset. However, that was easily explained by the nature of the contact. Finally, although Staggs did claim to have delivered marijuana to an individual earlier in the day, this did not show any reasonable suspicion as 1) such activity became legal in 2018; 2) it was clear that LE was not investigating marijuana and 3) the prosecution does not explain how the marijuana or Stagg’s statement support a reasonable suspicion of criminal activity. The pat down did not add to any analysis of reasonable suspicion because Staggs had already been detained long past the time a traffic investigation would have been concluded.
The appellate court concluded: “When we consider what actually occurred in this case, it is clear that the officers unlawfully prolonged a completed traffic stop. LE did not determine that a dog sniff was warranted based on new information he learned during the traffic stop. Rather, he made that decision once LE decided to initiate the traffic stop. In other words, the officers immediately moved from a traffic stop into a drug investigation, and we are unaware of any caselaw that would support this course of action. Although a traffic stop supported by probable cause is valid even if the stop is a pretext for some other reason, the officers must nonetheless have an independent reasonable suspicion of criminal activity to prolong the defendant’s detention for purposes of a dog sniff. Because the prosecution does not argue that the officers had a reasonable suspicion that defendant was engaged in narcotics activity before the traffic stop was initiated, we must necessarily consider whether the new information obtained by the officers supported such a suspicion. But for the reasons discussed, the new information provided weak, if any, indicia of criminal activity, and was mostly obtained after LE had ordered the K-9 unit.”
Note: This was a bit sloppy because there was not an overall plan. LE should consider the reasonable directions a traffic stop can go (and surveillance as well). Here, LE was surprised by Staggs’ actions and got thrown off their game. Because they were playing a long game (drug investigation), getting the plate and issuing a ticket or warning would have gotten the information LE needed to push their investigation. Instead, this turned into a mishmash. Now that the charges have been dismissed, LE is now facing a civil suit being filed. Planning is important.
United States v. Guerue (South Dakota 2022) 2022 U.S. Dist. LEXIS 230025
Traffic Stop; Prolonged Detention
Guerue was stopped by handler for several traffic violations. Handler had to turn around and as soon as he did, Guerue turned on to a road and parked in a driveway. Handler observed that as Guerue was in his vehicle in the driveway, there were furtive movements in the front passenger area by the passenger. There was discussion of why he had been stopped while trying to obtain all the needed documentation. Guerue admitted to not having a license (suspended) so handler obtained verbal information about identity while Guerue looked through the car for the registration. There was also a discussion of the juvenile front passenger getting a ride home from a licensed driver. LE then asked about weapons and Guerue admitted to possessing a gun and it was under the juvenile’s seat. Everyone ordered out and the weapon was seized. LE went back to his vehicle and called in the identity and vehicle information. Handler also mentioned the gun and gave the serial number on the gun to dispatch. LE went back to Guerue and Terry frisked him and asked him for consent to search. Guerue refused consent.
Handler then requested back up. At that point, dispatch had not responded to handler’s earlier request for ID and warrant checks. Handler then waited for back up to arrive before deploying his K9. Back up arrived shortly and handler deployed his K9 which alerted to the vehicle. The vehicle was searched and contraband was found.
Guerue filed a motion to suppress which was denied by the trial court. He appealed that order.
Here, the appellate court held that handler appropriately asked questions about Guerue’s destination, driver’s license and registration, and why he turned into a driveway. Likewise handler was justified calling dispatch for a check on warrants and determining that the vehicle’s registration had lapsed. Handler early on in the stop was aware of Guerue’s commission of three different traffic violations—speeding, no driver’s license, and outdated registration. Nothing prohibited handler from prolonging the traffic stop as he awaited the dispatch response on whether Guerue or his passenger had a warrant out for their arrest, determined whether a traffic ticket or warning would issue, and resolved whether a licensed driver was available to drive the car.
Handler did not unreasonably prolong the traffic stop by asking whether there was a weapon in the vehicle or by removing the Glock 19 handgun from the area under the passenger seat. Guerue and the Government debate whether handler prolonged the stop unnecessarily by seeking an NCIC check on the gun alongside calling in to seek a check of possible warrants on Guerue and his juvenile passenger. There is nothing in the record to suggest that handler was not diligent when he ran the records check on the gun; after all, the time it took handler to run the check was negligible. Guerue cited no case holding that such an NCIC check unduly prolongs a traffic stop and precedent permits “certain unrelated check but not in a way that prolongs the stop.'” There is no evidence that the request for an NCIC check on the handgun unreasonably prolonged the traffic stop to allow deployment of the K9.
Handler deployed his K9 as he awaited the check on possible outstanding warrants and after another officer had arrived. The Supreme Court in Illinois v. Caballes allowed police to deploy a K9 during a traffic stop to sniff for illegal substances without independent reasonable suspicion.
The facts of this case presented a close question of reasonable suspicion to delay the stop for deployment of a K9. Guerue did not pull over immediately and turned onto a gravel road and then into a driveway, though the officer had no suspicion that he would fail to stop. Guerue’s passenger moved in a way the officer deemed furtive as if concealing something under the passenger seat, but Guerue volunteered that he had a Glock 19 under the passenger seat, and Guerue and his passenger cooperated in allowing the officer to remove the handgun. Neither Guerue nor his passenger were licensed drivers and Guerue’s registration of the vehicle had lapsed. Yet Guerue was cooperative, and the officer did not smell drugs or testify to any behavior or observations indicative of drug use. Guerue’s responses seemed normal, though his explanation of why he drove into an aunt’s driveway suggested that he anticipated being taken into custody, arousing suspicion from the officer as to what was going on. Guerue denied having any drugs in the vehicle but refused to consent to a search of his vehicle.
Though these facts present a close call on reasonable suspicion to deploy a K9, controlling Eighth Circuit precedent establishes that this K9 use was not violative of the Fourth Amendment. Handler was still waiting to hear back from dispatch on the warrant and NCIC checks when the K9 search (court’s word) began and when the K9 alerted.
Note: The court held that the K9 sniff took place before the traffic stop was completed, and that there was enough reasonable suspicion to justify the wait for a K9 but never mentioned if the presence of the gun would trigger additional investigation. I don’t know the gun laws in Ohio, but in California, that gun would have been at least a possible misdemeanor offense. That would have extended the time for investigation but it wasn’t necessary here for the court’s holding.
State v. Byrd (Ohio) 2022-Ohio-4635
Traffic Stop; Prolonged Detention
LE observed Byrd drive past him hugging the steering wheel which indicated to LE that she was nervous passing a police officer. LE proceeded to drive behind Byrd’s vehicle. As he followed the vehicle, Byrd hit the brakes and made a lane change to exit the highway on the Bagley Road exit. LE testified that, as the vehicle exited the highway, he observed the vehicle drive across the solid white line on the right-hand side of the road — known as the fog line. At that point, LE decided to initiate a traffic stop.
LE asked for the appropriate documents and found out the car was a rental. LE asked her about her travels and she had a story that didn’t make sense. LE went back to his car to call the information in and learned at 11:09 that her license was valid. The government conceded that the traffic investigation was over by 11:10. However, LE believed that based on his past experience as a state highway trooper, the driver’s nervousness and what he considered to be incongruous answers to his innocuous inquiry regarding her travel “were criminal indicators for me to suspect there’s something more than just the simple traffic stop for the marked lanes violation going on with this traffic stop.” LE testified that, as he sat in his vehicle, he went over the account the driver provided about her travels and decided it did not make sense to him. He clarified with Byrd, who had another implausible explanation. She was also talking fast, another sign of nervousness.
LE had her step out and come back to his car. He seated her in the back seat and told her that if she checked out, he would write her a warning. They talked more about her travels; she still didn’t make sense to LE.
At 11:12, LE called for a K9 team. The team arrived at 11:18 and the K9 alerted on the vehicle. When asked if she had drugs or guns, she said she had a gun in the vehicle. Ultimately, LE gave her a warning citation and advised her that weapons charges would be filed. (I’m assuming the gun was seized).
Here, Byrd’s operation of the vehicle was recorded in the patrol vehicle’s dash-cam video. The trial court found the video depicted the majority of a tire went over the fog line, and our own review of the video shows it captures a fleeting moment of the vehicle’s tire crossing the fog line. The pertinent question here, however, is not whether Byrd was guilty of the marked lanes violation but, rather, whether LE had “probable cause to believe that a traffic violation has occurred.” If so, the traffic stop was lawful. The trial court specifically found credible LE’s testimony that he observed Byrd’s tire to have crossed the fog line into the berm. The appellate court is bound to accept the trial court’s finding of fact if it is supported by competent, credible evidence. LE’s testimony coupled with the dash-cam video depicting Byrd’s tire momentarily crossing the fog line establishes that LE had probable cause to believe a traffic violation had occurred, which justified his initiation of the traffic stop. The court noted that Byrd did not allege at trial nor argue on appeal that LE was using the traffic violation as a pretext to investigate if she was engaging in any criminal activity.
The court moved on to the prolonged detention issue. The court stated, “Here, the canine sniff occurred within 15 minutes of the traffic stop, which the courts have found to be a reasonable time to process a traffic citation (citations omitted). However, by [LE]’s own testimony, he had completed his investigation of the traffic matter eight minutes before the canine’s arrival. In order to justify the prolonged detention to effectuate a canine sniff of Byrd’s vehicle, the officer was required to articulate specific facts to support a reasonable suspicion of drugs or guns (citations omitted).
“[LE] testified that his suspicion was based on Byrd’s nervousness and the account of her travels, which did not make sense to him. These observations at best support an inchoate and unparticularized hunch that criminal activity might be afoot. However, they do not constitute specific facts to support a reasonable suspicion justifying an officer extending a traffic stop so that a canine could confirm or dispel the officer’s suspicion about illegal drug or gun activity. (Citations omitted.)
“Having evaluated the totality of the circumstances in this case, we conclude the police officer failed to articulate specific facts to support a reasonable suspicion justifying his prolonging the traffic stop for the purpose of a canine sniff of Byrd’s vehicle. The trial court’s finding of reasonable suspicion justifying a canine sniff is not supported by competent credible evidence contained in the record. In the absence of a reasonable articulable suspicion justifying a canine sniff, the extension of her detention during the traffic stop infringed upon Byrd’s rights under the Fourth Amendment to the United States Constitution against unreasonable searches and seizures.”
Note: Why concede that the traffic investigation was complete once her license was confirmed to be valid and prior to the warning being completed? This gave the government very little to work with. Granted, he may have prolonged the stop when continuing to question her about her travels, but he was still working on the citation when the K9 team showed up. LE should not have conceded that the traffic investigation ended (mainly because he was wrong) and the government’s lawyer did nothing to correct this, at least as far as I can tell from the opinion. I think what happened here is that the defense attorney asked LE what his subjective intent was (“When you got the information that her license was valid, you had everything you needed for your traffic investigation, right?”) and then the attorney ran with that “yes” answer (“So once you had that information, you needed nothing else to complete the investigation, right?” “So you have to agree that the traffic investigation was over, don’t you?”) And the door was slammed shut. The government should have been objecting to that first question because the defense attorney was asking the officer to give him a legal conclusion which is improper. Both LE and the government were not at their best in this case.
Stepp v. Brown (Florida 2022) 2022 U.S. Dist. LEXIS 227921
Excessive Force; Failure to Intervene; Failure to Train
Stepp alleges he was sitting in his car when approached by LE. They told him to get out of his car to talk. He refused if he was not under arrest. He claimed that one officer then told him he would make something up by which to arrest him. Stepp then started his car and drove off. He claimed he “caught” a flat tire so he left on foot to run. He saw LE behind him with a K9. He then “layed” down with his arms in front of him so he would not get bitten. K9 bit him anyway and claimed the handler acknowledged Stepp’s cooperation but allowed the K9 continue to bite five to seven minutes. In addition, other LE at the scene did not intervene.
The court held that these allegations were sufficient for the case to be served on defendants (therefore, defendant LE were not represented at this stage. I would imagine the body cams will show the true duration of the bite).
In the failure to train charge, Stepp attempts to state a claim against Hillsborough County for failing to train the deputies not to use excessive force and to intervene when another deputy uses excessive force. However, he neglected to allege any facts that would establish the elements of the claim. The failure-to-train claim is dismissed without prejudice.
Stepp alleges that he was running from the deputies, but when he saw the K9, he laid on the ground with his arms in front of him. After he was no longer running or resisting arrest, the K9 started to bite him. At handler’s command, the K9 attacked Stepp for five to seven minutes. Handler commanded the K9 to bite Stepp’s calf, tearing a “chunk out of [his] calf.” He alleged that four other officers “stood by” and failed to take any steps to stop the attack. These factual allegations are sufficient to proceed to service of process on Stepp’s claims of excessive force and failure to intervene.
Note: This is at a very early stage of a pro per filed case. The fact that he had managed to state two claims that may support damage claims really isn’t much in the grand scheme of things.
Aleman v. Riverside Cnty. Sheriff’s Dep’t. (California 2022) 2022 U.S. Dist. LEXIS 228055
Excessive Force; Eighth Amendment Claim; Qualified Immunity
Aleman, a prisoner, escaped from custody while being transferred to a different facility. He was recaptured and was allegedly being held by two custodial officers when handler deployed his K9 who bit Aleman. He claims permanent injury.
The court addressed his 8th Amendment cruel and unusual punishment claim. The court held that Aleman has sufficiently alleged facts that could plausibly support the conclusion ‘s LE’s use of the K9 was malicious and sadistic and, therefore, constituted excessive force in violation of the Eighth Amendment. Aleman alleges two unidentified officers apprehended and handcuffed him, and were still holding him, thus, rendering him “handcuff[ed] & defens[e]less” at the time handler “unleashed his K9 dog on [Plaintiff].” Aleman further alleges other officers, in addition to handler and the two officers holding Plaintiff, were present when handler deployed the K9. Finally, Aleman alleges he suffered permanent damage to his leg as a result of handler deploying the K9 dog against him. Under these circumstances, and specifically considering the need for force, degree of force used, threat reasonably perceived, and extent of Aleman’s injuries, the Court finds the allegations sufficient to state a claim for use of excessive force.
Handler argues Aleman fails to state a claim against Defendant for an Eighth Amendment violation because he “includes no additional facts” apart from “claim[ing] he was handcuffed” to show “he had ‘fully surrendered’ and was under the deputies’ control at the time the dog was deployed.” First, even assuming Aleman had only alleged he was handcuffed, the Court would nonetheless find Aleman’s allegation that handler unleashed his K9 on a handcuffed inmate, coupled with his allegation of resulting permanent injury, sufficiently states an Eighth Amendment excessive force claim. Moreover, handler’s argument blatantly mischaracterizes the alleged facts demonstrating Aleman was under the deputies’ control at the time handler allegedly released his K9. Specifically, Aleman alleges he was “grab[b]ed by two officers” who “walked [Aleman] away from the vehicle & building [he] was next to,” placed him in handcuffs, and “kept a hold of [him].” Aleman further alleges he “stood there a little longer,” “handcuff[ed]” and with “the two officers holding [him],” while “the other officers called it in to Dispa[t]ch that [Aleman] was apprehended” and additional officers began to arrive. Aleman has, therefore, made specific allegations explaining the circumstances surrounding his apprehension prior to the release of the K9 dog.
Accordingly, Aleman has sufficiently alleged a claim for an Eighth Amendment violation against handler.
Handler claimed qualified immunity. The appellate court denied this because handler did not meet the first prong because Aleman alleged sufficient facts to demonstrate handler used excessive force in violation of the Eighth Amendment.
The court went on to hold that handler also failed to meet the second prong, because the constitutional right in question was “clearly established” at the time of the alleged incident. The Ninth Circuit has clearly established that force that is applied “maliciously and sadistically for the very purpose of causing harm” is a violation of the Eighth Amendment. Here, Aleman alleges facts that, if found to be true, would show handler violated such clearly established law when he unleashed a K-9 dog on Aleman while he stood handcuffed, with two officers holding him, and completely defenseless. Thus, the law underlying Aleman’s claim was “clearly established” at the time of the incident.
Note: This is at a very early stage of the proceedings and only addressed two issues: whether Aleman could go forward by alleging facts sufficient, if true, to succeed on an 8th Amendment claim; and whether handler was entitled to qualified immunity. Losing this type of motion at this stage isn’t the end but there will be additional litigation in this case.
State v. Eastis (Idaho 2022) 2022 Ida. App. Unpub. LEXIS 358
Traffic Stop; Alert as Probable Cause
An officer initiated a traffic stop of a car driven by Eastis and began writing a citation for driving without privileges. After a second officer arrived and “took over” writing the citation, the first officer used his K9 to conduct a free-air sniff of the car’s exterior. The district court found that the K9 “gave a ‘half-sit’ alert and stood up on the driver’s door” and that the K9’s nose “briefly entered the vehicle, but only slightly.” The first officer searched the car and found a backpack containing methamphetamine and heroin.
Regarding the K9’s behavior prior to entry, Eastis acknowledges the district court found that the K9 was “in odor.” Eastis does not challenge this finding on appeal and, thus, we defer to it. According to the first officer, when the K9 “is in the odor,” the K9’s ears, tail, and sniffing pattern will change. Based on observing these changes in the K9’s behavior, the first officer opined that the K9 had smelled an illegal substance prior to entering the car.
Eastis stated the district court relied on case law which changed after the district court’s decision and asserts that, based on the new case law, the entry of the K9’s nose into the car constituted a search. Eastis further asserted the officers lacked probable cause for this search.
After the alert behavior, the officer then took steps to ascertain the location of the odor. The first officer testified that, prior to the K9’s entry (by his nose), the first officer “had no idea whether the odor was coming from within, inside the vehicle or maybe a compartment on the outside of the vehicle or somewhere else around the vehicle.” The first officer also acknowledged that, prior to the drug dog’s entry, the dog’s behavior was “not sufficient for [the first officer] to determine there was a positive alert that would allow [him] to search the vehicle.” These beliefs, however, are not determinative because an officer’s “subjective belief is not relevant to a probable cause determination.”
Between the trial/district court decision and this appeal being heard, the Idaho Supreme Court issued an opinion that rejected a “de minimis exception” and held that, “when a law enforcement drug dog intrudes, to any degree, into the interior space of a [vehicle] during a drug sniff, without express or implied consent to do so, a search has occurred under the Fourth Amendment.”
Because probable cause is a question of law, an appellate court may determine for the first time on appeal whether there was probable cause to search a vehicle prior to a K9’s entry. However, such a determination on appeal is not appropriate when there has been an intervening change in the law (as is the case here) and when the trial court’s application of the prior law “resulted in insufficient factual development.” Here, based on the record, the district court could find additional facts that bear on whether there was probable cause to search prior to the K9’s entry. For instance, the first officer testified that there was a breeze at the time, blowing in a certain direction, which came in and out of the car. According to the officer, the path of the wind explained how the K9 “was able to get into [the] odor.” In addition, the first officer’s bodycam shows the car’s location and the area around the car. The presence or absence of possible alternative sources for the odor could be relevant to the probable cause determination. Because there could be additional findings relevant to probable cause, we remand this case to the district court to make any such findings in the first instance. We express no opinion on what the additional findings should be, if any, or whether there was probable cause for the search. Those are questions for the district court to decide on remand.
Note: The testimony of the handler was that prior to the K9’s entry (by his nose), the first officer “had no idea whether the odor was coming from within, inside the vehicle or maybe a compartment on the outside of the vehicle or somewhere else around the vehicle.” The first officer also acknowledged that, prior to the K9’s entry, the K9’s behavior was “not sufficient for [the first officer] to determine there was a positive alert that would allow [him] to search the vehicle.” However, even though there was no full indication by the K9, all parties agree the K9 was in odor. It’s not reasonable to think the K9 is alerting on anything other than the vehicle because he was in odor next to the vehicle. And it does not affect the alert behavior if the odor ultimately comes from a container outside the car or somewhere else around the vehicle.
However, the handler testified that the K9 was in odor but the K9’s behavior before the nose entry was not enough to determine probable cause. That’s the crux of the issue. If that is true, then you must testify that way. But be careful of the defense putting words in your mouth.
State v. Walters (North Carolina 2022) 2022-NCCOA-796 (Unpub.)
Traffic Stop; Alert as Probable Cause; Legal Hemp v. Other Illegal Drugs as Probable Cause
Walters attracted LE attention because LE recognized the driver as Walters; LE also had information that suspected Methamphetamine had been seized off of Walters in the recent past. There were also felony possession warrants on Walters, which were still outstanding. LE turned around to follow the truck and saw a similar vehicle in the parking lot of a car dealership. LE then turned on his lights and initiated a traffic stop.
There is a dispute as to what happened first, but ultimately Walters was arrested on warrant(s), taken out of the vehicle and placed in handcuffs and put in a cruiser. By then, the K9 team that was summoned by LE was on scene. The K9 alerted. The vehicle was searched and a bag containing marijuana, marijuana paraphernalia and methamphetamine was located under the driver’s seat. Later, the marijuana was determined to be legal hemp. The government dismissed the marijuana count and proceeded on the methamphetamine count and Walters was convicted.
Walters appealed and argued a single issue on appeal: “Whether law enforcement officers need probable cause to use a drug-detection dog to sniff a vehicle for narcotics when the dog is unable to distinguish between contraband and noncontraband.” BecauseWalters did not have a legitimate expectation of privacy in the bag where he stored his methamphetamine, which could be detected by the drug-sniffing dog used by the police, the trial court did not err by denying Walter’s motion to suppress. The appellate court affirmed.
Walters contended that the USSC and North Carolina appellate court case must be re-examined due to industrial hemp’s legalization. Once hemp was legalized, and in conjunction with the fact that hemp smell like marijuana, Walters argued that, because a drug K9 may now alert to noncontraband, the law now requires probable cause to use a drug K9 because the K9 may alert to noncontraband.
Here, the appellate court stated, Walters did not have a “legitimate privacy interest” in his methamphetamine. The drug-sniffing dog was trained and certified to alert on methamphetamine, and Walters did not create a “legitimate privacy interest” as to the methamphetamine simply by storing it in the same bag with the hemp. Handler confirmed during the State’s presentation of evidence that the “dog is certified in cocaine, heroin, meth[amphetamine], and marijuana.” The dog was annually re-certified to detect these substances. The dog was trained to alert to the methamphetamine even in the absence of hemp. Thus, Walter’s argument that Caballes “must be re-examined due to industrial hemp’s legalization” is simply not presented by the facts of this case, where the methamphetamine and hemp were in the same bag, and the canine was trained to detect both substances.
Note: Once again, here is a court with some common sense. However, the holding is limited to the specific facts in this case and the important fact was that the marijuana was found with the methamphetamine, therefore rendering the discovery of the marijuana basically secondary to the finding of the meth. However, I think one can argue that a suspect should not be able to hide behind the fact that he had a legal amount of marijuana which he turns over proactively to shield him being investigated as a drug dealer in any other kind of drug. Why California didn’t make that argument in the first of the recreational marijuana cases is a mystery.
State v. Cruz-Pineda (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 792
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Search Incident to Arrest
A citizen tip indicated that a person was dealing drugs in the neighborhood and claimed a Blue Chevy and a secondary car would often stop near citizen’s house. People in the secondary car would get out and approach the Chevy, reach inside and then get back in their car and leave. The citizen had enough information for LE to identify the plate of the Chevy.
LE set up surveillance on four occasions. The first two were a bust. On the third occasion, the lead officer saw the blue Chevy and another vehicle enter the neighborhood, but both vehicles continued without stopping. On the fourth occasion, the lead officer and other members of her unit, including a sergeant and a supporting officer, saw the blue Chevy enter the citizen’s neighborhood, followed by a gray Dodge Avenger. Once the vehicles were stopped, the lead officer saw someone leave the gray Dodge, walk towards the blue Chevy, and re-enter the gray Dodge five to ten seconds later, but her view of the blue Chevy was blocked by a tree. Then, both vehicles left. The lead officer later testified that, based on her training and experience, she suspected that a drug deal had occurred.
LE split up and followed the Dodge and the Chevy. When the Chevy was stopped, LE called for a K9 unit. LE told the driver, Cruz-Pineda, that he was stopped because they suspected him of drug dealing. LE also called for a translator. While they waited for the interpreter, a Spanish speaking dispatcher was used to attempt to communicate with the driver and ask for informed consent to search.
After 36 minutes, a K9 arrived and alerted. The Chevy was a treasure trove of money, cell phones, receipts showing money sent to Mexico and a hidden compartment. During the search, the interpreter arrived and obtained consent to search his person. He was holding 26 balloon bags of heroin.
Cruz-Pineda moved to suppress the evidence obtained during the stop, arguing that police: (1) stopped him and conducted a dog sniff without reasonable suspicion of criminal activity; (2) unlawfully expanded the scope and duration of the stop; and (3) searched his person without consent, a warrant, or an exception to the warrant requirement.
Cruz-Pineda first claimed that LE lacked reasonable suspicion to pull him over for drug trafficking (remember, there was no traffic violation). The appellate court held that the citizen’s tips in combination with the observations of LE were sufficient to provide reasonable suspicion to stop Cruz-Pineda for further investigation. The citizen’s information was sufficiently detailed and confirmed by LE; that, added to LE’s observations, was enough.
Cruz-Pineda claimed that LE did not have reasonable suspicion sufficient to call for a K9 team and have K9 perform a free air sniff. The court used the same evidence above to find that there was enough reasonable suspicion to allow for a K9 sniff.
Cruz-Pineda then complained that the stop was unduly prolonged to wait for the K9 and LE did not act diligently to obtain the K9. The court held the 36 minute wait was reasonable for the K9 because of the rural nature of the area and the low staffing at the time.
Finally, Cruz-Pineda complained that LE overreached in searching his person. The appellate court stated that here, the evidence shows that police had probable cause to arrest Cruz-Pineda and therefore search his person. First, the concerned citizen identified Cruz-Pineda’s vehicle, described someone matching Cruz-Pineda’s appearance, and reported that both were involved in activities that are indicative of drug dealing. Then, the lead officer, who had training and experience in investigating drug crimes, observed activity involving Cruz-Pineda that she suspected was a drug deal. Based on this evidence, police stopped Cruz-Pineda and conducted a dog sniff around his vehicle. During the dog sniff, the K-9 unit alerted officers to the presence of drugs, which gave the police probable cause to search Cruz-Pineda’s vehicle. Officers testified that the search revealed several items that, based on the officers’ experience, are indicative of drug trafficking. Taken together, the concerned citizen’s tip, officers’ observations during police surveillance of the citizen’s neighborhood, and the sniff and search of Cruz-Pineda’s vehicle would lead an ordinary person to “entertain an honest and strong suspicion” that Cruz-Pineda had committed a drug crime. Thus, the district court did not err by concluding that police had probable cause to arrest Cruz-Pineda and thereby search his person.
Note: This case was interesting because LE didn’t go through the charade of waiting until Cruz-Pineda committed a traffic offense and then pull him over. Instead, LE relied on their investigation and pulled him over for the reasonable suspicion of drug trafficking. The only thing that would have made this better is getting the K9 out there faster, but that apparently was challenging in this case. Remember, even when you stop a suspect for drug trafficking and not a traffic violation, you still have to proceed diligently and continuously. You have a longer time, but in an non-rural are where K9s can respond quickly, you are not going to be allowed a 36 minute wait time. Best to contact the K9 team ahead of time and make the request as soon as you decide to pull him over, instead of waiting until you contact the suspect.
Rosenbaum v. Dunn (California 2022) 2022 U.S. Dist. LEXIS 224010
Excessive Force; Qualified Immunity
LE responded to a domestic violence call where the girlfriend of Rosenbaum alleged that he was drunk and physically assaulted her and threatened to sexually assault her. She also stated he was trained in martial arts and had a previous altercation with LE. She claimed he had a gun previously, but was unsure whether he was in possession of it.
An arrest team was assembled including a K9 team. They entered the first floor of the residence and called out commands for Rosenbaum to surrender. After 5 minutes, Rosenbaum appeared at the top of the stairs above the LE team. LE made repeated commands for Rosenbaum to surrender or a K9 would be deployed and he would be bit. After about 5 minutes of this, LE shot Rosenbaum with a bean bag and the K9 was deployed almost simultaneously.
Rosenbaum alleges his hands were up the whole time while LE claims he lowered his hands out of LE view several times. Once the K9 bit Rosenbaum, he claimed that he was laying on his stomach in full surrender with his hands stretched our and surrounded by LE but LE let the K9 continue to bite him for 20 seconds. LE states that when Rosenbaum was bit, he was seated on the ground with his back against the wall. The video indicates that Rosenbaum was seated but unclear if Rosenbaum had his hands raised (the K9 was attached to one arm).
The parties agree that the duration from when LE could see the K9 on the bite and the K9 was released was 25 seconds. The defense expert claimed that the bite lasted 43 seconds while LE claimed that the time from release to removal was 42 seconds (based on video evidence). Finally, the parties disagree as to what were Rosenbaum actions once LE reached him. Rosenbaum claimed that LE were training their weapons on him and assisting with his arrest. LE said that one officer was first up the stair providing lethal coverage of Rosenbaum and the unsearched area of the second floor. Ultimately, it was determined that the K9 was engaged on the bite for about 4 seconds after handler confirmed Rosenbaum was under control of the other officers.
Rosenbaum sued, claiming excessive force arising from the deployment of the K9 and the duration of the K9 bite (there was another theory of liability, but not relevant to the discussion here). LE disputed Rosenbaum’s alleged facts and also claimed qualified immunity.
The court first made a determination of the level of injury attributed to the bite. The court found that hospital photographs of Rosenbaum’s gaping wound belie the notion that this injury was moderate. The encounter was around 40 seconds and there is allegations of permanent damage to Rosenbaum’s arm. Therefore, the Court can infer that the amount of force used to subdue Rosenbaum was significant.
The court went on to address the Graham v. Connor factors. The court acknowledged that the domestic nature of the call was serious, but claimed that since the abuse was over and the victim had achieved distance from her abuser, this diminished the dangerousness of Rosenbaum to LE (see note). So while the factor favored LE, it wasn’t by much. In the analyzing of the second factor, the court held that the release of the K9 was justified, but the duration of the bite continued 20 seconds after Rosenbaum was subdued and his arms were out and visible to LE (see note).
The third factor was whether Rosenbaum was resisting or attempting to evade arrest. While LE asserts that Rosenbaum was actively resisting, the court found that Rosenbaum complied with LE’s commands to show his hands once the K9 was engaged. LE did not assert any arguments of active or passive resistance once K9 was deployed. Therefore, for the 20 second period, this factor weighed in Rosenbaum’s favor.
Based on this analysis, the court found that it could not grant summary judgement because there were issues of fact that remained as to whether the duration and extent of handler’s use of K9 was an unreasonable use of force.
As to qualified immunity, it is clearly established law that K9 force cannot be continued on someone who is subdued and unable to pose a danger or is surrendering by obeying commands. Since there remains a dispute in the facts in this case, qualified immunity cannot be granted.
The court also left alive claims against on scene LE based on a theory of failure to intervene.
Note: The courts are going to be picking apart cases more and more. Here, there was no problem with the deployment, but there was arguably 20 seconds where suspect was subdued and complying while the K9 was still attached by his bite. That 20 seconds may be the avenue for Rosenbaum to obtain a hefty settlement or a jury verdict. However, this is only at summary judgement stage. LE will be given an opportunity to show that those 20 seconds were necessary; there was no discussion in this opinion about the possible firearm or what size Rosenbaum was, etc. Hopefully, these facts will assist in obtaining the rightful verdict or settlement.
Also, the court described the wound as gaping which means that the government did not submit their own exhibit of the wound once medical treatment was administered. That should always be done.
State v. Jelani Adisa Harper (Ohio 2022) 2022-Ohio-4357
Traffic Stop; Prolonged Detention
During a traffic stop for lane violations where the two occupants had conflicting stories, the plate didn’t match the vehicle, and one occupant had no ID, the investigation was delayed because dispatch was not immediately able to confirm ID. During that time, handler decided to deploy his K9 to the vehicle. Occupants were removed, given Miranda rights and placed in a cruiser that had recording equipment running. The vehicle was searched but nothing was found. LE then put the occupants back in the van and reviewed cruiser camera footage of them. This circus was repeated twice; placing the men in the cruiser, searching the van, removing the men from the cruiser, reviewing video footage, and then resuming the search. Based on conversations, they found 11 baggies with oxycodone pills.
Was the stop unduly prolonged by the K9 sniff? Because handler was still awaiting the requested information, he had not begun to issue either a verbal or written warning or citation at the time the K9 sniff was conducted. Further, at the time the handler’s K9 alerted on the vehicle, only 14 minutes had elapsed from the time of the initial stop. Thus, the K9 sniff did not impermissibly extend the traffic stop here. Therefore, LE had probable cause to conduct a warrantless search of Harper’s vehicle for contraband. This probable cause extended to the entire vehicle and there was no time limit in conducting the search.
Thus, the appellate court rejected Harper’s argument that the manner in which LE conducted the search resulted in three separate searches, each of which required its own separate reasonable suspicion or probable cause. Handler testified at length regarding the normal process he employs when searching a vehicle, including the many tools at his disposal such as review of the in car cruiser cam footage. The trial court found that only one search took place and the appellate court concluded this finding by the trial court was supported by competent, credible evidence. Moreover, this Court had previously determined that once a trained drug dog alerts to the odor of drugs, police have probable cause to search the entire vehicle for drugs and may continue to search even if the passenger compartment contains no drugs.
Note: Good result and interesting use of cruiser’s recording systems. This court had absolutely no problem with any of it, but I would suspect that more liberal courts would be a bit disturbed. I think the issue could be that at some point, probable cause does dissipate and the seizure of the vehicle would be unduly prolonged. But these facts do not rise to that level here, at least according to this court.
United States v. Tenorio (5th Cir. Texas 2022) 2022 U.S. App. LEXIS 33978
Alert as Probable Cause; Border Search
Tenorio drove a Chevy Tahoe to a port of entry to the US. CBP stopped the Tahoe in the outbound lane. Tenorio said he was leaving the US and going to Mexico. He claimed not to have any weapons or ammo and claimed $3200.00. Tenorio was nervous and his face started twitching as they started to talk about the money. He was very interested in what the K9 was doing. Since the K9 showed some interest in the vehicle, Tenorio was instructed to pull over. This encounter lasted about 5 minutes.
Tenorio confirmed his previous answers. He was instructed to get out of his vehicle and the K9 sniffed it and alerted at the back of the car. The K9 then went over to Tenorio and alerted on his boot. CBP also found a GPS tracker beneath the steering wheel. Tenorio “avoid[ed] all eye contact” and that his hands were “visibly trembling.” He was Terry frisked for weapons and when CBP looked down into his boots (no information on this but it does not appear they touched the boots at this point), they could see a garbage bag. Inside was an additional $18,900 in cash. He waived his Miranda rights and said the cash was from alien smuggling activity. His cell phones were not examined.
Tenorio contended that (1) the K9 sniff of his person was unlawful because the officers lacked reasonable suspicion, and (2) his detention and referral to a secondary inspection constituted a nonroutine border search, which required reasonable suspicion.
The court made short work of these two theories by holding that both issues are resolved under the border search exception of the 4th Amendment requirement of a search warrant because both instances were part of a routine border search. In addition, the sniff of his person did not require reasonable suspicion because it clearly qualified as a routine border search. The length and circumstances of Tenorio’s detention were consistent with a routine border search. The secondary search lasted approximately ten minutes and consisted of questioning by CBP agents, a search of Tenorio’s vehicle, a K9 sniff of his vehicle and person, a weapons frisk, and an eventual request that Tenorio lift his leg. These ordinary investigative measures are, individually and collectively, a far cry from “cavity searches, strip searches, . . . x-rays” and other “objectively intrusive searches” that “invade the privacy and dignity of the individual,'” which are considered a non-routine border search. Tenorio’s detention did not exceed the bounds of routine border searches and therefore did not require reasonable suspicion.
Note: Not sure why the cell phones were not examined, but they are a treasure trove of information about whatever criminal enterprise their owner is involved in. If you have probable cause for a crime in which a cell phone could reasonably be involved, seize them as evidence and write a warrant to get into them.
State v. Rogers (Ohio 2022) 2022-Ohio-4535
Reasonable Suspicion; Terry Stop; Prolonged Detention
LE was conducting surveillance on a gathering in a high crime area. LE saw at least two men openly carrying firearms. Rogers arrived at the party and parked his Lincoln facing away from the gathering. Rogers started to step out, looked at the gathering and got back in. LE saw him reach into the passenger area and appear to be placing an item in his waistband area, a common place for suspects to carry illegal firearms. When Rogers got out, LE saw a “suspicious bulge” in the front center location of Rogers’s waist area. While at the gathering, LE was watching Rogers and he did not do anything that would indicate he got rid of what was in his waistband. Rogers left the gathering and got back in his car and drove away. Another person who was openly carrying also left in a different vehicle.
Apparently there was some issue stopping Rogers and stop sticks had to be deployed. Once he was stopped, LE approached with gun drawn and told Rogers to show his hands. He did so and ID’d himself. He denied having a weapon. Records search did not show any warrants or a concealed-carry permit. LE told Rogers that if he didn’t have a gun, he could leave. When an ATF agent asked Rogers if he had a firearm, Rogers replied that he had been in an “area where a lot of stuff was going on” and it “gets crazy” so he left. In response to Rogers’s request to go home, LE told Rogers three times that he could go home if he would agree to voluntarily exit from the vehicle and consent to a check for weapons on his person and the “immediate area” inside the vehicle. Rogers repeatedly refused, again indicating that he was “scared” and “didn’t know what was going on,” and pointing out to the officers that there were no firearms visible in his vehicle. LE told Rogers that, if he did not give consent, then they would “get into the car with a canine sniff,” and which way they proceeded “was up to Rogers.” Rogers maintained his position.
A K9 team arrived about 8 minutes later. Rogers was removed from the car and a Terry frisk turned up nothing. K9 alerted and a gun was found in the glovebox. No drugs were found in the car.
Rogers maintains that LE’s observations were not sufficient to establish the necessary reasonable suspicion to justify an investigative stop of his vehicle. Additionally, Rogers argues that even if the stop was justified at its inception, the officers impermissibly extended his detention for a K9 sniff to obtain probable cause to search his vehicle.
The court first addressed the stop. Based on the totality of the circumstances, the court held that the initial stop fell within the parameters of a lawful Terry stop based on a suspicion of criminal activity. It was a high crime area, which included firearm crimes. There were at least 2 people openly carrying firearms, and Rogers’ behavior indicated that he was concealing a firearm.
The court then addressed the duration of the stop. This stop was based on an investigation of a firearm offense, not a traffic stop. Since LE already had reasonable suspicion to conduct the stop, nothing during the stop dispelled that suspicion. Terry‘s test for determining whether a lawful investigative stop is converted into an arrest-like detention is whether the degree of intrusion into the suspect’s personal security was reasonably related to officers’ suspicions and the surrounding circumstances. Based on the seriousness of the suspected offense and the danger an unsecured firearm poses, an 11 minute wait for a K9 was reasonable.
Note: Another interesting case. I thought it was a problem when there was evidence that LE said if you don’t give consent, we’ll get a K9 and we’ll get in that way. If this K9 was a drug dog and not a one trained in explosives/gunpowder, then that might be an issue (defense could claim that the K9 was used as a ruse to get into the vehicle by cueing K9 to alert). Maybe that’s just my paranoia, but I could see this as an issue in future cases. Here, though, there was absolutely no challenge to the alert.
Rose v. Officer Adams (Virginia 2022) 2022 U.S. Dist. LEXIS 226804
Prison K9; Excessive Force
Two inmates started fighting. Dodson picked up a trash can and threw it at Rose so Rose took Dodson down. He was hit with a bean bag round while he was restraining Dodson. At that point, Rose was sprayed and shot with OC and bitten by K9. Dodson was pulled away from Rose by a CO and handler had Rose turn over so he could release K9 which he did. Rose did not hear any warnings. Rose alleges permanent damage to his leg from the bites, although he was less than cooperative with the jail medical staff. There was 11 seconds between getting hit with the OC round and the K9 biting him, when he could have surrendered. Instead, he claimed he was restraining Dodson until the CO’s broke them up, a violation of jail rules. The K9 was released 6 seconds after Rose complied with handler’s commands. Accurate times were available through video recordings. Warnings by all, including handler, were given prior to deployment.
The court found in favor of LE on Rose’s § 1983 claim because it found that the preponderance of the evidence shows that the force applied by handler and other LE was not excessive, in that it was done in a good-faith effort to restore order. While it is clear that Rose was not the initial aggressor, the evidence before the court showed that after Dodson threw the trash can, Rose picked Dodson up, threw him to the concrete floor and appeared to be striking Dodson. From the evidence before the court, the court found that Rose was on top of Dodson and continuing to struggle with Dodson when LE used force by deploying one OC canister round striking Rose in the back, when LE sprayed Rose with one burst of OC spray and when handler deployed his canine on Rose. All three LE testified that they warned the men to stop fighting before each use of force. The video evidence supports the officers’ testimony as to a warning being given because it shows other inmates dropping to the ground and lying there. The video evidence and the officers’ testimony establish that each use of force was measured, in an attempt to stop the altercation. Also, the video evidence shows that, as soon as Rose complied with orders, the force stopped, in that handler disengaged the canine.
Note: Reasonable use of force as well as a good release as soon as LE had compliance. Remember, the test in custody situations is whether the force used was necessary for a good-faith effort to restore order. It’s a little different for those on patrol.
United States v. Barrow (Texas 2022) 2022 U.S. Dist. LEXIS 222085
Traffic Stop; Reasonable Suspicion; Good Faith Exception to the Exclusionary Rule
LE was patrolling in an historic storm of ice and snow where about 50% of residents were without power. LE pulled into a gas station and saw Barrow and co-defendants with their Camaro at one of the gas pumps. The Camaro did not have a front plate, a violation of Texas law. LE attempted to get the rear plate, but accidentally transposed two digits and got a response that the plate was registered to another vehicle, had been cancelled and did not have valid insurance. After pulling them over, the more they talked, the more there were things that did not add up, including the plate issue. Barrow had a long criminal history and was on patrol and the passenger claimed to be a LE officer, but when pressed, said she used to be one. They had conflicting and conflicting stories which changed over time. LE called for a K9, but because of several factors, which were exacerbated by the storm, it took about 51 minutes for the K9 to arrive, even though efforts were being constantly and diligently by LE to obtain the team’s presence. The K9 alerted to the Camaro. The search revealed meth and $17,000 in cas.
The appellate court held that he initial stop was justified because LE had reasonable suspicion that Codefendants committed a traffic violation for not possessing a front license plate. While Codefendants’ Motion asserted that they did not violate Texas traffic law, the front of the Camaro was missing a license plate, as required by state law.
Sixteen minutes into the stop, however, LE developed reasonable suspicion of additional crimes. Co-defendant seemingly committed a third-degree felony in LE’s presence. She stated, unprovoked, “I’m actually a police officer in Amarillo.” At the suppression hearing, LE from the Amarillo College Police Department testified that she had not been an officer since May 2020. Nevertheless, she procured for LE an Amarillo College identification card labeled “Police Officer.” LE testified that Impersonating a Public Servant was a violation for Texas Penal Code Section 37.11, and False Identification as a Peace Officer was a violation of Texas Penal Code Section 37.12. If additional reasonable suspicion arises during a traffic stop, before the initial purpose of the stop has been fulfilled, then an officer can extend the detention until the new reasonable suspicion has been dispelled or confirmed. While LE had reasonable suspicion to extend the stop for the first fifteen minutes, he launched an additional investigation into these potential crimes as well.
Only after codefendant was unable to provide any further identification as a police officer did LE contact dispatch to request a K-9 unit. He simultaneously requested a point of contact at Amarillo College, conveying that he was pursing multiple investigations into criminal activity. LE testified at the hearing that he was concerned that her false identification as an officer was an attempt to receive a “professional courtesy” — because she was a fellow police officer, LE would simply let them leave. Furthermore, he found it suspicious that a proclaimed law enforcement officer would be dating someone on federal parole, and that she could not provide him with identifying information officers were typically required to know. These new circumstances, when combined with the earlier suspicious circumstances, led LE to believe he had reasonable suspicion to contact a K-9 unit to inspect the Camaro and to continue detaining Codefendants.
The fact that the traffic stop lasted just under an hour does not, in itself, violate the Fourth Amendment. There is no constitutional stopwatch on traffic stops. Instead, the relevant question in assessing whether a detention extends beyond a reasonable time (quoting Sharpe, 470 U.S. at 686). Here, LE was diligent in attempting to secure a K9 unit and contact with the College as soon as possible. While the weather initially rendered the nearest K9 unavailable, LE requested the unit seek special permission to travel to the scene. Because of his efforts, the nearest unit in Boyd eventually received permission to travel. Additionally, LE and his team made several attempts to contact the College, which was also shuttered due to inclement weather. While waiting for both of those requests, he continued his investigation on scene.
Because of LE’s diligence in investigating his reasonable suspicion, though it was initially mistaken, the traffic stop was not improperly extended. It also was not improperly extended when additional reasonable suspicion arose, and LE employed new investigative techniques to dispel or confirm that new suspicion. That LE simply could re enter the license plate again is “an easy conjecture in hindsight,” and it does not consider the totality of all other circumstances that dissuaded him from considering whether he made a mistake, nor the additional reasonable suspicion that developed throughout the stop.
Because LE’s subsequent actions were reasonably related in scope to the circumstances that justified the stop, it was not unlawfully extended during the first fifteen minutes. Furthermore, because he “reasonably proceeded with deliberation in response to evolving conditions” in order “to dispel his reasonable suspicion [that] developed during the stop,” the extension was not unlawfully extended after the sixteen-minute mark. LE diligently pursued his investigation, particularly in light of the historic “Snow-Mageddon” limiting his access to typically-available resources.
Some mistakes by law enforcement are reasonable and therefore not in violation of the Fourth Amendment. Because the two-part analysis in Terry is satisfied, and because LE relied on his reasonable mistake in good faith, the exclusionary rule does not apply in this case.
Note: This was a Texas case so the bench is probably more supportive of LE than other jurisdictions. Nevertheless, it’s a good reminder that if you make a mistake in good faith, it’s not the end of the world. When you discover that mistake, report it, document it and correct it.
Farris v. Culp (Washington 2022) U.S. Dist. LEXIS 222377
Alert as Probable Cause; Cross Contamination; Qualified Immunity
At the scene of a DUI where the driver was arrested, a K9 team was requested. The K9 alerted on the vehicle. The car was towed but not searched. Later, Farris’ blood was found to have no intoxicants and the DUI was dismissed.
Farris then filed a lawsuit claiming her 4th Amendment civil rights were violated, malicious prosecution and Monell liability. She later added state law counts of false arrest/false imprisonment, malicious prosecution and negligence. She claimed she was overly tired and was agitated with LE because she knew she wasn’t drunk or high and she wanted LE to leave her alone. In addition, she claimed that handler caused the K9 to falsely alert by touching the vehicle after having handled a dog scent toy (cross contamination). Farris claimed this cross contamination was a practice of the agency.
The initial investigative stop was not questioned by Farris. While it is not unlawful to sleep in a car, it is unusual to sleep in the driver’s seat slumped over the center console in a parked car on the side of a highway. LE was aware that Farris had been in that condition long enough for a third party to contact authorities and report a female driver slumped over. Farris did not initially respond to LE’s initial knock on the window to wake her up. After waking and seeing LE, Farris did not attempt to open her window or door. When asked to roll down her window, Farris did not comply, and she needed assistance opening the car door. Upon initial questioning, LE observed that Farris did not know where she was and did not initially know where she was going. Her pupils were pinpoint, her speech was slow, and she was slow to respond to questions. Even though LE did not observe Farris operate the vehicle or detect an odor of intoxicants, the totality of the circumstances gave LE reasonable suspicion of her physical control of a vehicle while impaired. Farris claims these facts are explained as “symptoms expected from a person abruptly awakened,”; however, the question is not whether there may have been an innocent explanation for these facts, but rather whether taken together, they give rise to reasonable suspicion that Farris was in control of a vehicle while impaired. The Court found reasonable suspicion supported the extension of the stop. Moreover, a reasonable officer in LE’s position could have believed there was reasonable suspicion to extend the stop. Accordingly, LE has qualified immunity as to Farris’ claim for unlawful seizure based on the extension of the stop. The same finding was made for the arrest.
Since there was no evidence that the vehicle was searched, this was dismissed as an issue.
The court then addressed the Monell liability issue, where Farris alleged LE violated her constitutional rights by (1) the County’s failure to train LE; (2) the City’s creation of a practice where officers intentionally and negligently “cross-contaminate vehicles to influence a K-9’s search”; and (3) the City’s creation of a “practice where officers . . . are encouraged to violate citizen’s rights, and destroy their property, in the interest of personal gain and potential forfeiture opportunities.” Here, the court held, there can be no liability under Monell as there is no evidence that the City has a policy or custom that allowed for the existence of unconstitutional conduct by its officers or that that the City has a policy or custom that actually caused the alleged constitutional deprivation. Assuming for the sake of argument that cross-contamination occurred during the deployment of the canine, there is no evidence this was a practice of sufficient duration, frequency and consistency to suggest it was a policy. The City is entitled to summary judgment on Farris’ Monell claims.
The claims of negligence, failure to train and the state claims were also dismissed.
Note: Farris was clearly struggling with something that evening because she appeared very impaired. Cross contamination is an issue we’re seeing more of, but this was just overreaching on Farris’ part.
Lall v. State (Texas 2022) 2022 Tex. App. LEXIS 8745
Traffic Stop; Alert as Probable Cause; Prolonged Detention
Lall was observed by LE wearing a black fanny pack across his chest, loading things into his vehicle which was under surveillance for suspected narcotics activity. After he left that location, he was stopped by handler for equipment violation and following too closely. Lall cooperated with handler, submitted to a Terry frisk of his outer clothing, but appeared nervous. AFfer Lall checked out, he was given a verbal warning. Handler then requested consent, and Lall refused. Handler then retrieved the K9 and after an open-air sniff, alerted on the vehicle. Meth, marijuana, paraphernalia, indicators of sale and a stolen firearm were found. The meth was found in the fanny pack.
The court first found that the traffic stop was supported by reasonable suspicion. The court then moved on to the prolonged detention issue. It initially found that the traffic investigation had concluded when the K9 performed its sniff. The court then looked at several factors to see if LE had additional reasonable suspicion of drug trafficking to extend the stop to include the K9 sniff.
In this case, Lall had just left an area where residences were suspected of drug trafficking. LE had observed Lall pull up, and got in and out of the vehicle several times and put several things into the vehicle. He was wearing a black fanny pack across his chest. He pulled almost entirely out in the road and then backed up into the driveway when he left which surveillance described as a heat run, used to detect movement in surrounding houses or surveillance.
Local LE located the vehicle after the surveilling LE called for assistance. Local watched as the vehicle crossing the double yellow lines and was following the car in front too closely. In addition, local was unable to call the plate in because it was obstructed.
Handler ultimately pulled Lall over. Lall was unable to find ID and was overly nervous. Lall was looking back at his vehicle, all of which made handler think there was something in the vehicle. After getting the all clear on verbal information of Lall’s ID, a warning was given and the traffic stop was concluded. When consent to search was denied, the K9 sniff took place.
The court held that these fact, analyzed as a totality of the circumstances, was reasonable suspicion sufficient to prolong the detention.
Note: There were other issues appealed but not relevant to our purposes here. This defendant was sentenced to 40 years in prison for slinging over 4g but less than 200g. Texas is sure different from California!
Crabtree v. State (Indiana 2022) 2022 Ind. App. LEXIS 385
Curtilage; Privacy Rights; Alert as Probable Cause
LE investigated a vehicle in the parking lot of a motel in a high crime area. It had a temporary registration that did not match the VIN. Also, there was criminal tools inside the truck. A resident said the truck belonged to room 233 which was confirmed to contain Crabtree and boyfriend. A sniff of the truck resulted in an alert. The K9 was taken to the doorway of Room 233 and K9 alerted there as well. A knock and talk proceeded; Crabtree and boyfriend came out and were handcuffed. Search warrants issued for both the truck and the room. Contraband was found.
Crabtree appealed her conviction with three arguments: (1) the K9 sniff of the hotel-room door violated the state constitution, (2) the officers’ warrantless entry into the hotel room violated the state constitution, and (3) without this illegally obtained evidence, the search warrant for the hotel room was not supported by sufficient probable cause and any evidence obtained should be excluded.
The Indiana Supreme Court has held that the reasonableness of a search or seizure under their constitution is generally determined by balancing three factors: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs. In addition, reasonable suspicion is needed for LE to conduct K9 sniffs at the front door of a residence, reasoning that, as with trash searches, K9 sniffs of residence implicate serious concerns over LE entering private property arbitrarily.
Here, officers conducted a dog sniff in the outdoor walkway of a hotel and, in part using information from that sniff, obtained and executed a search warrant for one of the hotel rooms. Based on the above, there was reasonable suspicion to use the K9 to sniff the door. Using the comprehensive three-factor balancing test (above), the court concluded the K9 sniff was reasonable. The court also held that the entry into the motel room was constitutional, the search warrant was supported by probable cause and therefore the search of the room was constitutional.
Note: This outcome would have been different had it been a federal criminal case. Crabtree may file a civil case claiming her federal civil rights were violated and she may have a different result. It’s important to keep in touch regularly with your local prosecutor so you know where your jurisdiction is on the law.
United States v. Chandler (6th Cir. Michigan 2022) 2022 U.S. App. LEXIS 33297
Traffic Stop; Reasonable Suspicion
Chandler and Martin were trafficking drugs from Arizona to Michigan as part of a drug conspiracy. LE got a tip about Martin where this informant had talked to him and was told that he planned to drive from California to Michigan with a large quantity of meth. Martin was found to have previous narcotics convictions.
LE then got a warrant to monitor Martin’s phone and tracked it to Arizona. While in Arizona, Martin’s girlfriend rented a car from Avis, but she was never seen in Arizona. Martin flew from Arizona to Michigan on the date that the informant said he would be coming back. 3 days later, Martin returned to Arizona.
Another conspirator, an in custody defendant, claimed that Chandler had traveled with him several times to Arizona to purchase meth. Conspirator confessed to shipping large amounts of meth from Arizona to Michigan.
At this point, LE did not know where Chandler was, but Martin was on the move in Arizona. LE called for locals to pull the vehicle over for a drug investigation, which they did, but also because they saw the car registration was hidden on the license plate and for following too closely.
Chandler was the driver and Martin was the passenger. Chandler and Martin were separated and questioned. They offered conflicting stories. Both had warrants for their arrest on unrelated matters. At some point during the stop, a K9 sniffed the vehicle and alerted. A search revealed cash but no drugs. The car was impounded and searched again with no luck. LE listened to a call from Martin where he described where the drugs were hidden. Third search revealed over 7 kilos of meth.
Chandler appeals on two issues: (1) Whether the officers had reasonable suspicion of a civil infraction to stop the Nissan Pathfinder; and (2) Whether the officers had reasonable suspicion of ongoing criminal activity to conduct an investigatory stop of the vehicle. (Note: there were three issues but the court considered the third one not properly briefed).
To start, the court stated, Chandler’s presentation of the issues confuses the legal standard. This case implicates two distinct avenues for permissible traffic stops under the Fourth Amendment. First, an officer can lawfully stop a vehicle if she has probable cause of a civil infraction. Second, an officer can lawfully stop a vehicle if she has reasonable suspicion of an ongoing crime. So Chandler must show that there was neither probable cause of a traffic violation nor reasonable suspicion of drug activity to prevail on his motion to suppress. He could not make either showing.
Chandler complained that the statute regarding the display of registration only applied to in-state plates, but the statute has no such requirement. Chandler even admitted that part of the plate was obstructed. Under this factual situation, LE had reasonable suspicion to stop the vehicle to investigate the registration issue.
Moving on to the reasonable suspicion of drug trafficking, the court held the the informants information along with the phone tap and the corroboration provided by Martin’s and Chandler’s movements provided reasonable suspicion that they were involved in drug trafficking.
Note: Nothing really new here, but a good job by investigators in being persistent in their investigation.