JULY 2021 UPDATE FOR MEYER’S K9 LAW (Vol. 2, No.7)

[ View Archives ]

(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. I do not represent any individual or agency. 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.)

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 (A caution here: some cases are unpublished (Unpub.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

Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. As I did last month, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state. If you would like me to address a particular issue, please feel free to email, text or call me.


New York City has now legalized adult personal use of cannabis and downgraded penalties for illegal use. In addition, the new legislation specifically prohibits LE from using the smell of marijuana as probable cause. The Manhattan District Attorney’s Office said Tuesday that it plans to dismiss more than 3,000 open warrants for low-level marijuana offenses, a move that follows the mass dismissal of marijuana cases by Bronx prosecutors last week.

The Rhode Island Senate passed legislation to legalize and regulate cannabis and impose taxes of up to 20% on its sale to adults under a bill that would start the state’s legal cannabis marketplace in 2023.

Connecticut finalized and approved legislation, legalizing adult use of marijuana with less than a week left in the legislative session.

Virginia is retiring or donating to other jurisdictions K9s trained in marijuana after passage of marijuana legalization law.


In Iowa last year, state lawmakers voted to ban chokeholds and crack down on police misconduct. This year, legislation was passed that added a definition of “qualified immunity” to Iowa code that adhered to the federal standard. The new definition is more expansive than that which was established by the Iowa Supreme Court in 2018, meaning law enforcement officers will have stronger lawsuit protections. It also makes a denial of qualified immunity immediately appealable. This new law also expands punishment for crimes often associated with protests, such as trespass, vandalism, etc.

New York City has eliminated “qualified immunity” as a defense against civil rights lawsuits alleging excessive force or unreasonable search and seizure. Connecticut and Colorado have also limited this defense.

These two jurisdictions represent two ends of the spectrum. Expect additional cases and discussions regarding the qualified immunity doctrine.


United States v. Garcia (Georgia 2021) 2021 U.S. Dist. LEXIS 121046 – Traffic Stop; Prolonged Detention

In the Interest of S.R., a minor (Illinois 2021) 2021 Ill. App. Unpub. LEXIS 1092 – Odor of Marijuana as Probable Cause

United States v. Jackson (Ohio 2021) 2021 U.S. Dist. LEXIS 120528 – Traffic Stop; Prolonged Detention

Gowen v. State (Georgia 2021) 2021 Ga. App. LEXIS 316 – Odor of Marijuana as Probable Cause; Hemp v. Marijuana

United States v. Lugo (Washington 2021) 2021 U.S. App. LEXIS 18992 – Odor of Marijuana as Probable Cause; Prolonged Detention

State v. Upchurch (Ohio 2021) 2021-Ohio-2143 – Odor of Marijuana as Probable Cause; Inventory Search; Reliability Foundation of LE

State v. Wright (Ohio 2021) 2021-Ohio-2133 – Tracking/Trailing Evidence

Commonwealth v. Turner (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 1680 – Odor of Marijuana as Probable Cause; Consensual Encounter v. Detention

Tway v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 538 – Traffic Stop; Prolonged Detention

State v. Hale (Idaho 2021) 2021 Ida. LEXIS 102 – Traffic Stop; Prolonged Detention

Justice v. State (Texas 2021) 2021 Tex. App. LEXIS 476 – Traffic Stop;

State v. Britcher (Iowa 2021) 2021 Iowa App. LEXIS 479 – Traffic Stop; Prolonged Detention

United States v. Stewart (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 113339 – Traffic Stop; Prolonged Detention; Cueing

State v. Roberson (Oklahoma 2021) 2021 OK CR 16 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Ligon (Ohio 2021) 2021 U.S. App. LEXIS 18302 (Unpub.) – Sniff of Package; Standing (Reasonable Expectation of Privacy)

State v. Lazo (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 652 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. $128,915.00 (Illinois 2021) 2021 U.S. Dist. LEXIS 111591 – Traffic Stop; Prolonged Detention;

United States v. Hill (Illinois 2021) 2021 U.S. Dist. LEXIS 111803 – Production of K9 Records; Use of Force as Unreasonable Search and Seizure

United States v. Gholston (Illinois 2021) 2021 U.S. App. LEXIS 17658 – Traffic Stop; Prolonged Detention

Robinson v. Requejo (Florida 2021) 2021 U.S. Dist. LEXIS 110035 – Excessive Force; Qualified Immunity

United States v. Johnson (Missouri 2021) 2021 U.S. Dist. LEXIS 108908 – Odor of Marijuana as Probable Cause

United States v. Louis (Florida 2021) 2021 U.S. App. LEXIS 16853 – Traffic Stop; Prolonged Detention

United States v. Holmes (Ohio 2021) 2021 U.S. Dist. LEXIS 106562 – Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

Calvert v. City of Steubenville (Ohio 2021)2021 U.S. App. LEXIS 16947 (Unpub.) – Excessive Force; Qualified Immunity; Reliability Foundation

Smith v. Ornelas (Indiana 2021) 2021 U.S. Dist. LEXIS 107193 – Excessive Force in Custody

Funke v. Hatten (Nevada 2021) 2021 U.S. Dist. LEXIS 107173 – Excessive Force; Qualified Immunity

United States v. Brewer (Kentucky 2021) 2021 U.S. App. LEXIS 17130 – Traffic Stop; Prolonged Detention

Malpass v. Glore (Missouri 2021) 2021 U.S. Dist. LEXIS 104909 – Excessive Force

United States v. Celes (California 2021) 2021 U.S. Dist. LEXIS 105596 – Use of K9 as Detention

State v. VanBeek (Wisconsin 2021) 2021 WI 51 – Reasonable Suspicion; Detention

Green v. Caron (Connecticut 2021) 2021 U.S. Dist. LEXIS 102418 – Excessive Force in Prison

United States v. Pitts (North Carolina 2021) 2021 U.S. Dist. LEXIS 103075 – Traffic Stop; Odor of marijuana as Probable Cause

State v. Malloy (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 604 – Traffic Stop; Consent


United States v. Garcia (Georgia 2021) 2021 U.S. Dist. LEXIS 121046
Traffic Stop; Prolonged Detention

Based on an on-going investigation where LE had a residence under surveillance and believed they saw a drug deal go down involving Garcia, LE asked handler in a marked unit to conduct a traffic stop on Garcia. LE also told handler about what they saw during their investigation. Handler stopped Garcia for a tint violation. Handler directed Garcia, the driver, out of the vehicle and obtained documentation. Handler determined that Garcia had no outstanding warrants. However, Garcia was inconsistent and conflicted regarding simple questions about the vehicle and his travel. Handler asked another officer who had arrived at the scene shortly after the traffic stop was initiated to complete the written warning that handler himself had already begun. While that was taking place, handler walked his K-9 partner around Garcia’s vehicle. When handler initiated the dog sniff, approximately seven minutes and twenty seconds had elapsed since the traffic stop began. The dog alerted to the odor of narcotics at the vehicle’s driver-side door.

The court held that because he could not see through the windows of Garcia’s vehicle, handler had reasonable suspicion to believe that the vehicle violated Georgia’s window-tint law. It did not matter that the stop was initially prompted at LE’s direction for other reasons. Handler reasonably believed, based on his observations and experience, that Garcia had committed a traffic violation.

Likewise, the K9 sniff did not unlawfully prolong the traffic stop. As handler stated, he asked another officer to complete the window-tint investigation while he led his K-9 around Garcia’s vehicle. The dog sniff took approximately thirty-five seconds, during which time handler’s partner worked to complete the traffic citation. Less than eight minutes elapsed between the initiation of the traffic stop and the K-9’s positive contraband alert; a much shorter delay compared to others that courts have previously approved. As a result, Mr. Garcia’s contention that the traffic stop was unlawfully prolonged is unsubstantiated.

Note: This court actually applied the wrong standard and cited pre-Rodriguez cases to support their analysis. The actual elapsed time is not the test; the test is whether the dog-sniff either 1) actually prolonged the traffic investigation or 2) whether LE had additional probable cause to expand the traffic investigation into other crimes. The court got to the right result, however.

In the Interest of S.R., a minor (Illinois 2021) 2021 Ill. App. Unpub. LEXIS 1092
Odor of Marijuana as Probable Cause

In an area LE believed to be a high crime area and in which LE had recovered several firearms, LE was responding to a shots fired call. When they arrived, they saw an SUV and a Nissan. The vehicles were travelling with the SUV trailing the Nissan and both stopped in front of a school. As LE drove alongside, Minor was driving the Nissan. LE could smell the odor of burnt marijuana coming from the vehicles. LE saw Minor exit the Nissan in possession of a backpack. LE also saw Minor take something from his person, drop it into the Nissan and then close the door. Minor then got into the SUV with the backpack. LE made a U-turn and stopped their vehicle by the SUV and activated their lights to conduct a field interview. Again, after ordering out all the occupants, LE could smell the odor of marijuana. Occupants were Terry frisked. LE looked inside the Nissan and saw a bullet in plain view. Minor claimed the Nissan was his and, after Minor refused to comply, LE retrieved the keys from Minor’s pocket. Inside the Nissan was a gun. The trial court discounted Minor’s “poor” testimony and denied his motion to suppress.

Minor did not dispute the veracity of LE’s testimony at the motion to suppress; he simply argues that neither the marijuana smell nor the presence of a bullet in the backseat of the vehicle provided LE with probable cause to believe that the Nissan contained evidence of a crime. The appellate court disagreed, stating that “Illinois courts have repeatedly recognized that the distinctive smell of burning cannabis emanating from a vehicle will provide police with probable cause to search a vehicle and all persons seated therein.” Although Minor suggests that LE only detected the smell of burnt cannabis emanating from the SUV, he testified at the suppression hearing that he smelled marijuana as his partner was driving past both of the stopped vehicles. He later confirmed that when Minor and the other occupants were ordered out of the SUV that there was a strong smell of burnt marijuana coming from that vehicle. Accordingly, the court found that the marijuana smell provided LE with probable cause to believe that the Nissan contained evidence of unlawful marijuana possession, which justified the search of the vehicle.

In addition, the court further found that the search was justified because LE also possessed probable cause to believe the vehicle contained evidence of the recent shooting. LE encountered the Nissan within “seconds” of receiving a ShotSpotter alert that shots had been fired in that vicinity. He then observed a bullet on the backseat of the vehicle, an area of the vehicle in which he had observed Minor “drop something” moments earlier. “Common sense and logic dictate that a bullet is often associated with a gun” and that “a bullet observed inside a vehicle may reasonably indicate the presence of a gun inside that vehicle.” Although Minor is correct that mere possession of a firearm is not itself a crime, the appellate court found that the totality of the circumstances, provided LE with probable cause to believe that the Nissan contained the weapon used in the recent shooting, since the evidence showed that LE encountered the Nissan within seconds of the shooting in that area, Minor was observed making movements consistent with placing something in the vehicle, and a bullet was observed on the backseat, the exact area of the Nissan that respondent had accessed moments earlier.

Note: The appellate court addressed two avenues of admissibility, 1) the smell of marijuana and 2) the combination of  the information about the shooting, Minor’s actions and the bullet in plain sight. Having the court make findings on more than one avenue of admissibility makes it harder for appellate courts to discount all of them.

United States v. Jackson (Ohio 2021) 2021 U.S. Dist. LEXIS 120528
Traffic Stop; Prolonged Detention

LE noticed a vehicle drive into a gas station and ran the plate, discovering that owner had an arrest warrant. LE checked the Bureau of Motor Vehicles database image of driver, and determined that driver was the owner. LE stopped the vehicle and had driver step out. Driver was extremely nervous and since his warrant was for drug crimes, LE called for a K9 team. LE also asked for confirmation of the warrant. The K9 team arrived prior to that confirmation. Prior to beginning the sniff, LE asked driver if there were drugs in the vehicle. Driver said yes. LE then asked the passenger to step out and saw an open container of wine on the floorboard. Contraband was found in the vehicle.

The appellate court indicated that the original stop was valid because the facts indicated he had a reasonable suspicion that driver was the same person who had a warrant.

The court additionally held that because LE was already reasonably waiting for dispatch to verify the warrant while he called in the K9 unit, calling the K9 unit also did not unreasonably prolong the stop. Also, driver’s admission that there were drugs in the vehicle and LE’s observation of an open alcohol container in plain view were sufficient to establish probable cause.

Note: The court emphasized that LE only needed reasonable suspicion to conduct the traffic stop and that the fact that the owner of the car had a warrant and that LE was able to confirm the driver was not only the owner of the car, but that he was the person named in the warrant rose to this level of proof. As for probable cause for the search of the vehicle, the court addressed two avenues of admissibility; the K9 alert and the fact that there was an open container in the car in plain view when the passenger was directed out, as well as the admission of possession of contraband. Again, a good record that should stand up on any further appeal.

Gowen v. State (Georgia 2021) 2021 Ga. App. LEXIS 316
Odor of Marijuana as Probable Cause; Hemp v. Marijuana

LE spotted Gowen in a vehicle and found a federal warrant for him. Once this warrant was confirmed, LE found Gowan in a parking lot and detained him. While LE was waiting for additional details on the warrant, LE allowed Gowen to call his attorney sister. LE retrieved Gowen’s phone from his vehicle, and LE noted smelled of marijuana. LE then found out that the warrant was for methamphetamine crimes and arrested Gowen. His vehicle was searched pursuant to the smell of marijuana and the warrant arrest. Contraband, including what LE believed were marijuana leaves, was found.

Gowen did not dispute that the odor of marijuana coming from a vehicle provides LE with probable cause to search the vehicle. Gowen relied on the Georgia Hemp Farming Act (GHFA) which went into effect on May 10, 2019. This statute legalized the licensed cultivation of hemp with a specifically defined level of THC, the manufacture of products from that hemp, and the possession of those products. Gowen contended that because legal hemp and illegal marijuana have a similar smell, the odor of marijuana cannot provide probable cause for the search of a vehicle because police have no way of knowing if the odor is from marijuana (an illegal substance) or hemp (a legal substance.) He further contended that the leaves police located in his van might have been hemp and might have been the source of the smell LE detected. LE testified in the suppression motion that he was not aware if there was any difference between the smell of marijuana v. the smell of hemp.

The court held that to prevail on this argument, Gowen would need to show that the GHFA permits the retail sale of raw hemp — i.e., hemp in a form that resembles marijuana. Given the plain language of the Act, Gowen cannot make this showing. In fact, the GHFA makes it illegal to sell unprocessed hemp; it only legalizes processed hemp. GHFA does legalize a processed hemp product that is designed to be burned or smoked, but Gowen relied solely on the fact that the Act legalized the cultivation of hemp as an agricultural product, and argued the possibility that the “shake leaves” found in his van were hemp.

The court dismissed this argument and upheld the denial of the suppression motion.

Note: This hemp v. marijuana argument is being raised more often as states dip their toes in the legalization waters. Some states have only legalized hemp with a specific THC level and defense attorneys are trying to use that to develop an argument that since LE can’t tell if they’re smelling hemp or marijuana, they don’t have probable cause. In those states that have legalized hemp, expect this argument. Here, the defense strategy was not well defined and was part of the reason they lost. The court talked about a different provision in the law which they might have been more inclined to rule for Gowen.

United States v. Lugo (Washington 2021) 2021 U.S. App. LEXIS 18992
Odor of Marijuana as Probable Cause; Prolonged Detention

The appellate court here basically affirmed a denial of a motion to suppress without stating the facts. The court held that LE did prolong the stop here to wait for the K9 team to arrive. But the necessary reasonable suspicion existed because he saw and smelled marijuana in the car. In addition, the seizure of the vehicle was supported by the smell of marijuana, as well as driver’s admission that marijuana was inside.

Note: This was a federal case and therefore federal standards applied to this case. Since marijuana is still illegal federally, the court upheld the smell of marijuana as probable cause to search.

State v. Upchurch (Ohio 2021) 2021-Ohio-2143
Odor of Marijuana as Probable Cause; Inventory Search; Reliability Foundation of LE

Gang task force LE was working a high crime area where several shootings had taken place. LE pulled into a parking lot and smelled burnt marijuana. LE also saw a occupied vehicle that was parked but the engine was running. As LE approached the vehicle, the smell of burnt marijuana became stronger. LE then got out and contacted driver Upchurch, who immediately got out and closed and locked the door and attempted to walk away. In plain view was an open alcoholic beverage. Upchurch had a warrant (as well as his passenger) and was arrested on that warrant. He was also ticketed for the open container. The vehicle was then secured, inventoried and towed. During the inventory, several guns and marijuana was found.

The court held that the initial approach quickly evolved into a Terry investigative stop was lawful because LE smelled an overwhelming smell of marijuana, apparently coming from Upchurch’s vehicle, in an otherwise sparsely populated area, and he quickly locked and exited the vehicle upon the LE’s arrival. Ohio law clearly provides that “the odor of marijuana establishes probable cause to search a vehicle only when the odor is detected by a person qualified to recognize it.” The court held that since Upchurch did not raise the issue in the trial court, he could not raise the issue of whether LE had the appropriate training and experience to correctly identify the smell of marijuana. In addition, the open container provided additional grounds for the detention.

Also, LE’s inventory search was lawful because LE’s decision to conduct the search was made on good faith, given that after the background check was conducted, it revealed that there were outstanding warrant of arrest for both Upchurch and his passenger.

Note: The appellate court did not allow Upchurch to add the issue of the qualifications of LE regarding recognizing the smell of marijuana. However, this is an issue that the government must address during testimony because it is our burden to show that LE possesses the appropriate training and experience to come to any conclusion, including the smell LE detects is marijuana.

State v. Wright (Ohio 2021) 2021-Ohio-2133
Tracking/Trailing Evidence

A K9 team tracked a serial robber from the robbed store to a residence near where the robber was ultimately located and arrested. This evidence, along with additional factors (clothing, etc. as well as comparing similar factors from other robberies where robber was identified) was enough circumstantial evidence for the appellate court to find that the verdict of guilty was supported by sufficient evidence, even though no one identified Wright as the perpetrator of the robbery.

Note: Although the reliability foundation of the K9 team was not challenged, it always can be. Make sure your records are up to date and you are prepared to testify to you and your K9’s training and experience.

Commonwealth v. Turner (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 1680
Odor of Marijuana as Probable Cause; Consensual Encounter v. Detention

While on patrol, LE passed a vehicle stopped on the side of the road, and smelled the odor of burnt marijuana as he passed within two feet of the vehicle. LE testified that he was able o determine that the odor he smelled was burnt marijuana because of his training and experience. LE backed his vehicle behind Turner’s vehicle and contacted Turner, whose engine was not running but the keys were in the ignition. LE observed what appeared to be tobacco on the floor of the vehicle and he informed Turner that he could smell marijuana. A nervous Turner confirmed that he had marijuana and provided it to LE. Back up arrived and Turner was removed from vehicle. A search revealed additional contraband. LE did not activate his emergency lights and there was no evidence presented suggesting that LE ordered Turner not to leave before Turner produced the marijuana.

The appellate court found that LE was merely approaching Turner in a public place and asking him questions. At this point, Turner was under no obligation to engage with LE; however, Turner willingly said he was in possession of marijuana and gave it to LE. The court found this was a consensual encounter which did not require any level of suspicion. This meant there was no detention prior to Turner admitting possession of marijuana and handing it over to LE. Therefore, there was no Fourth Amendment violation. This was sufficient evidence to arrest Turner on probable cause of possession of marijuana and the search of the vehicle then was legally pursuant to arrest.

Note: A consensual encounter does not require LE to meet any burden of proof; however, a consensual encounter can easily turn into a detention (which then requires reasonable suspicion) extremely easily depending on the circumstances, the most important of which is a display of force or authority. Once there such a display, you will need to be able to articulate reasonable suspicion to justify additional actions.  

Tway v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 538
Traffic Stop; Prolonged Detention

Traffic stop for improper license plates, violating lane boundaries and following too closely. LE asked driver, Tway, to accompany him to the cruiser (to separate him from his passengers to eliminate a concocted story between them). While checking Tway’s license and registration, LE asked questions about Tway’s travel, the other occupants of the car and his tattoo of a marijuana leaf. Tway answered the questions. LE was still waiting on warrant information when back up arrived and started talking to the passengers. At 12:22, LE then explained the citation and asked again whether there was illegal drugs, weapons or money in the vehicle. Tway denied this, and then LE told Tway that a K9 was going to sniff his vehicle. At 12:27, LE handed Tway the citation. At 12:28, LE received information that Tway had no outstanding warrants. At 12:28, LE exited his vehicle with the intention of asking questions of Tway’s passengers regarding their itinerary and ownership of the vehicle. Tway remained in the police vehicle. The K9 sniff began at 12:28, and the K9 alerted. Contraband was found.

LE testified at the motion to suppress that he noticed the following during the course of the traffic stop: (1) Tway had tattoos that included a marijuana leaf and others that LE believed were gang-related; (2) Tway left the door to the police vehicle open when he got into it; (3) Tway’s driver’s license was broken in half and taped back together; (4) Tway’s license plate was partially obscured; (5) Tway’s glove compartment was locked; (6) Tway appeared to be breathing rapidly and trembling when he was initially pulled over; (7) Tway’s t-shirt featured a marijuana leaf; (8) Tway asked questions about the warning citation while LE was processing it; (9) Tway’s name was not on the vehicle registration; (10) Tway did not have a bill of sale for the PT Cruiser; and (11) LE believed Tway could not recite the names of his passengers. Additionally, LE observed inconsistencies in Tway’s answers to his questions.

The trial court held that even though LE’s conversation extended the traffic stop by a few minutes, inquiries into matters unrelated to the justification for the traffic stop do not convert the traffic stop into something other than a lawful seizure, because the inquiries did not significantly extend the duration of the stop (the trial court relied on state law case authority of Curry v. State (Indiana 2017) 90 N.E.3d 677.

The only issue on appeal was whether the stop was illegally prolonged for the K9 sniff. The appellate court found that when LE stepped out of his vehicle, his intent was to speak with Tway’s passengers. LE initially separated Tway from his passengers “[t]o avoid the potential for a fabricated story between them and the other people.” At the time of the dog sniff, LE was still attempting to verify that Tway owned the PT Cruiser. At the time, LE was not able to match the temporary registration and car title to Tway, and believed that Tway’s story as to when the car was purchased was inconsistent. LE asked the passengers “what the relationship between them and Mr. Tway and the purpose of their trip with him and if they knew who the vehicle belonged to.” Thus, the questions pertained to the travelers’ itinerary and the ownership of the vehicle, which is permitted, as evidenced by several Circuits. Therefore, the stop was not prolonged.

Note:  If the mission of the traffic stop has not been completed by the time of the K9 sniff (and LE diligently pursues the traffic investigation), then there is no prolonged detention. You will need to be able to articulate why your investigation is either 1) part of the traffic stop or 2) the additional facts that give you reasonable suspicion to open the investigation into other crimes not related to the traffic stop. 

State v. Hale (Idaho 2021) 2021 Ida. LEXIS 102
Traffic Stop; Prolonged Detention

LE saw a vehicle parked by itself in an unlit parking lot of a closed business. The vehicle did not have a front license plate and when the vehicle left the parking lot, LE noted there was no rear plate either. LE stopped the vehicle. The driver, Hale, handed LE his license and said that temporary registration permit was posted in the window. LE did not inspect it but asked Hale if the vehicle was registered to him. Hale said it belonged to a friend and did not know if the vehicle was insured. LE returned to cruiser to check on these documents and other related issues. LE also requested a K9 team to respond. There was a discrepancy about where the owner of the vehicle lived so LE questioned Hale about this. LE then called the owner after Hale provided his number who confirmed Hale had permission to drive his car, but that he had no insurance. LE had started the citation and during his conversation with the owner, the K9 team arrived and alerted. After the alert and before handler informed LE of the alert, LE was still confirming information with Hale that was required for the citation. Contraband was found when vehicle searched.

The trial court denied Hale’s motion to suppress, stating the key issue in the case was whether LE had unlawfully prolonged the stop by inquiring into Hale’s authorization to drive the stopped vehicle. Answering that question in the negative, the trial court ruled that LE may, without unlawfully prolonging a traffic stop, take reasonable steps to verify a non-owner driver’s claim of permission to drive the stopped vehicle, at least when there is some reason to be skeptical of that claim. In addition, the trial court concluded that the skepticism about a non-owner driver’s claim of permission need not rise to the level of reasonable suspicion to justify an inquiry into the truth of that claim. Therefore, there was no prolonged detention. The first appellate court affirmed the trial court’s ruling.

The Idaho Supreme Court held LE’s questioning regarding Hale’s permission to operate the vehicle was an ordinary inquiry incident to the traffic stop. Thus, despite Hale’s contention that the ordinary inquiries incident to a traffic stop should be limited to the three checks enumerated in Rodriguez, there is no definitive list of permissible questions. At any rate, the facts of this case do not require us to delineate the full scope of those ordinary inquiries. Rather, this case only considers whether law enforcement may ask follow-up questions pertaining to the three customary checks described in Rodriguez. The lawful duration of a traffic stop is tethered to “when tasks tied to the traffic infraction are-or reasonably should have been-completed.” As a result, LE’s follow-up questioning concerning the information provided as part of ordinary traffic checks is still measured according to the Fourth Amendment’s bedrock requirement of reasonableness, and questions related to those checks that are designed to lengthen a stop rather than verify contradictory information may run afoul of that requirement. For example, if law enforcement conducting a traffic stop exhaustively attempt to verify information provided by a stopped driver, without any reason to do so, the stop likely will be unlawfully prolonged because the tasks related to the stop were not completed in a reasonable amount of time. That being said, where, as here, there is some reason to believe that the information provided during a license, registration, and insurance check is incomplete or inaccurate, a further inquiry to confirm that information (including whether a non-owner driver is in lawful possession of the vehicle) is not, in and of itself, unreasonable or outside the scope of the traffic stop’s purpose.

Note: This court relied heavily on Rodriguez for their decision and laid out very well their analysis of the questioning by LE and why the questioning did not prolong or delay the stop. A good read for a refresher on this issue, especially since other jurisdictions have applied a stricter standard.

Justice v. State (Texas 2021) 2021 Tex. App. LEXIS 476
Traffic Stop;

Traffic stop for speed. When LE approached driver and sole occupant, Justice, LE smelled the odor of burning marijuana and saw what LE thought was a roach on the passenger seat. Driver was taken out, handcuffed and Terry frisked. Driver had a large amount of cash in his pocket. Search of the vehicle revealed more roaches, a blunt, and in the void under the cup holder was a gun, pills and marijuana.

Here, LE testified that he searched the vehicle because he observed marijuana in plain view, smelled “burning marijuana” and the odor of marijuana “throughout” the vehicle and driver admitted to “smoking a little weed.” LE also testified that the space beneath the console was a “common place for people to—on those types of vehicles to hide stuff” and that the cup holder “was loose and it just came right out.” Viewed in the light most favorable to the trial court’s implicit findings, this evidence supports findings that LE had probable cause to search the vehicle in areas that he was aware could be used to hide marijuana and that he did not exceed the search’s authorized scope when he “picked up the cup holder” and searched the space beneath it.

Note: Driver tried to claim that looking under the cup holder was out of bounds, but the court held that since the probable cause threshold was met by the smell of marijuana and the admission, LE could look anywhere evidence of the crime(s) suspected could be. The second half of the opinion is about whether LE properly preserved the evidence seized; since this is outside the scope of this update, I have not included that portion in my review.

State v. Britcher (Iowa 2021) 2021 Iowa App. LEXIS 479
Traffic Stop; Prolonged Detention

LE drove past a known drug house during the early hours of the morning. A Ford had a bent front plate which LE noted was a tactic used by people who don’t want their plates to be read. LE was able to obtain the plate info from the rear plate, but was unable to check on registration due to technical difficulties. A few minutes later, LE saw the Ford driving with improper illumination of the rear plate. LE stopped the Ford for both plate violations. Driver was able to provide all documents but registration. There was discussion where LE learned that driver had just gotten out of prison for methamphetamine possession 5 months earlier. About 4 minutes into the stop, LE returned to his cruiser and determined that driver had an extensive drug history. A back up officer arrived and LE brought him up to speed. While LE waited for dispatch to return with additional information, he called for a K9 team. LE testified that this call did not cause any delay in his generation of a written warning (presumably because he was still waiting for additional info from dispatch/computer). He finally got the information he needed and started the printing of the warning. However, he had trouble with that as well and the K9 team arrived between the printing of the two citations. LE brought handler up to speed and about 1.5 minutes after K9 team’s arrival, K9 alerted to the Ford. LE then issued driver the warnings and handler began searching the vehicle and found contraband.

Driver complained that the stop was unduly prolonged by “unnecessarily reviewing and discussing Britcher’s criminal history, and by calling for a drug dog.” The court held the following:

Here the purpose of the traffic stop was to issue warnings. The evidence discloses that when LE returned to his cruiser, he had to request information concerning the vehicle’s registration because driver could not tender his registration paperwork. Due to issues with the computer system, a return of information took longer than usual. During that time frame, LE also reviewed driver’s criminal history—which was permissible even if he was not waiting for a return of information, and discovered driver “had a significant history involving methamphetamine.” While continuing to wait for a return of information on the vehicle’s registration, LE discussed the situation with another officer who arrived on scene, and LE also decided to call for a drug dog. The evidence shows LE checked driver’s criminal history and called for a drug dog while waiting for verification of driver’s registration information. Retrieving said information would be essential to issuing an equipment warning. The record also discloses LE began generating the warnings as soon as he had all the required information before him. So reviewing driver’s criminal history and calling in a drug dog did not prolong the stop. Furthermore, the dog sniff was completed with a positive alert prior to the conclusion of the less than thirteen minutes LE was in his vehicle effectuating the purpose of the stop.

Because LE’s acts about which driver complains—checking and discussing driver’s criminal history and calling in a K9—as well as the dog sniff itself, did not exceed the time needed to handle the matter for which the stop was made—issuing warnings—the stop was not prolonged beyond the time reasonably required to complete the mission of issuing the warnings. Checking and discussing the criminal history and summoning a K9 did not prolong the stop because the record discloses LE was still waiting for a computer return of registration information when those acts occurred, and he began generating the warnings as soon as he was able. As such, authority for the seizure did not end, and driver’s constitutional rights were not violated.

Note: This opinion is actually a rather narrow holding. Basically, the court said that there was no prolonged detention because the K9 sniff occurred before LE could get the warnings produced and served. For example, there was no other discussion, as there has been in other cases, that the conversations with the other LE officers could be prolongation. This opinion very simply says if a sniff occurs during the investigation of the reason for the stop, probable cause generated by the alert then allows for arrest and search.

Driver did try to raise the issue of the K9’s physical entry into the vehicle after alerting on the vehicle from the outside, but the appellate court ruled that driver did not preserve that issue for appeal because he did not raise it in the lower court. The court did state that even if they were to consider this issue, they would rule against driver because the K9 had already alerted on the vehicle, providing probable cause for any additional search of the interior.

United States v. Stewart (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 113339
Traffic Stop; Prolonged Detention; Cueing

LE saw Stewart (sole occupant) driving with heavily tinted windows and a partially obstructed rear plate. LE obtained license, registration and insurance from Stewart. LE questioned Stewart about his travels. LE finds out that the registered owner of the vehicle did not reside at Stewart’s address. LE then informed Stewart he was going to issue warnings about the equipment violations. There was additional discussion about Stewart’s family and his work. LE then obtained the serial number from the dashboard and called for back up. LE then asked for the name of the person who owns the vehicle, which Stewart gave the first name of the person, his “aunt.” Back up arrived and LE gave the warning citations to Stewart. LE then asked if there are weapons, contraband or money in the vehicle and Stewart said no. Stewart declined to give consent for a search. LE then called for a K9 team. After a 39 minute wait, the K9 team arrived and alerted to the vehicle (having responded from home).

During the motion to suppress in the trial court, LE testified that the vehicle had two layers of tint which was indicative of a vehicle containing a hidden compartment. Also, LE believed that Stewart was not being truthful about his residence because he could not explain where the town was that he claimed he was from. LE was also suspicious because it was a third party vehicle and Stewart’s answers to his questions were somewhat squirrely. There was also an air freshener. Stewart also appeared very nervous. During the check of Stewart’s criminal history, LE discovered that he had a criminal record of a DEA money laundering case. LE took some time to investigate this further. LE also noticed that Stewart’s body language did not relax when LE told him he was only going to get a warning.

The appellate court stated that to determine whether a traffic stop was unduly prolonged, the court must first determine the “Rodriguez” moment, meaning the moment that the traffic stop was measurably extended beyond the mission of the traffic stop; i.e., when ordinary inquiries incident to the traffic stop have ended. Once that moment is established, the court must then determine whether LE had additional reasonable suspicion based on the facts known to LE at that time.

The court determined that the evidence of record arguably supported a conclusion that the mission of the traffic stop was ongoing at the time LE told Stewart he would issue a warning rather than a ticket. The court went on; “However, rather than parsing precisely when the mission of the traffic stop ended, the Court will key the requisite inquiry from Stewart’s earliest Rodriguez moment, i.e., when LE told him he would issue a warning rather than a ticket, and assess whether LE could lawfully extend the stop based on the reasonable suspicion he possessed at the time that illegal activity had occurred or was occurring.

“At the time LE told Stewart he planned to issue him a warning, he had “an objectively reasonable and articulable suspicion that illegal activity had occurred or was occurring” and could thus extend the stop. Although the timeline regarding when criminal history information came in from the database is imprecise, prior to when LE told Stewart he would issue a warning, he knew that Stewart had a criminal history that included a DEA arrest for money laundering in Illinois. In general, “criminal history contributes powerfully to the reasonable suspicion calculus” in conjunction with other factors. Money laundering is a crime recognized to be related to drug trafficking. Thus, Stewart’s arrest for money laundering is appropriately considered a fact which strongly supports reasonable suspicion in this case.

Even without this information, the court held that LE’s suspicion that criminal activity was occurring was objectively reasonable based on numerous factors including Stewart’s nervousness, his driving a vehicle registered to a third person, his imprecise answers to questions related to the registrant and his use of the vehicle, his failure to provide a direct response to the question of the location of the city of registration, and other recognized indicators such as dark tinted windows, air freshener, and slow-speed travel.

In sum, the numerous indicators supporting LE’s reasonable suspicion that criminal activity was occurring allowed him to continue the traffic stop with no violation of the Fourth Amendment.

As the Court determined above, LE had reasonable suspicion to extend the traffic stop when he called for backup. The court then addressed the almost 40 minutes it took for the K9 team to respond. The court held that any delay attributable to the backup officers’ arrival is reasonable—backup was called for officer safety and, from the inception of the stop to the call for backup and the arrival of backup, evidence shows that LE was engaged in reasonable investigatory procedures and practices of the traffic investigation.

Stewart also complained that LE should have called for a K9 team earlier. The court dismissed that argument because “we have observed no lack of diligence by officers waiting to call for K-9 units until after the suspect has denied consent.” Here, LE called the canine unit as soon as Defendant denied consent to search the van and, pursuant to Garner, this timing could not be deemed unreasonable.

Further, the court held, no evidence suggests that the length of time it took the canine unit to arrive, thirty-two minutes, is unreasonable. Though longer than the seventeen minutes in Garner which was found reasonable, this K9 team was traveling from home in Luzerne County to 1-80 in Carbon County. Thus, the Court found that the thirty-two minute delay caused by the K9 unit’s travel time to the scene was reasonable.

Finally, the overall time of the stop in this case did not suggest a lack of diligence. This stop continued for approximately one hour and thirty-five minutes before Stewart was placed under arrest. The court held that the detention in this case too is at the outer limits of a Terry stop, but there is no basis to conclude that it exceeds that limit. Part of the delay in this case can be attributed to the need for a repeat request for backup and the distance traveled from K9 team’s home to the scene. The Court concluded that LE and the K9 unit proceeded diligently in carrying out the mission of the traffic stop and further investigatory procedures. Therefore, no Fourth Amendment violation occurred based on lack of diligence or unreasonable delay.

Stewart also complained that the dog sniff was non-consensual, it went beyond an open-air sniff, and it was the result of improper encouragement and cueing. Stewart did not put forward any facts or argument to support the assertion that the dog sniff was the result of improper cuing or encouragement or that the K9 entered the vehicle. On the contrary, the evidence showed K9 independently exhibiting alert and indication behaviors before handler and another officer open the doors of the van to conduct the interior search. Thus, Stewart’s assertions regarding the dog sniff are without merit.

Note: The court addressed this case from several angles and determined that LE had additional reasonable suspicion and therefore could extend the stop. The court held that the 30-40 minute delay was reasonable given all the facts at hand. I would, however, be wary of arguing in court that the time for investigation should be extended solely because the K9 team was too far away or otherwise engaged. There should be at least additional facts entered into the record, like there was here; the fact that the K9 team was off-duty and responding from a residence a significant distance away. I would also enter evidence that there was no other team available that could respond more quickly (if that were indeed true). 

State v. Roberson (Oklahoma 2021) 2021 OK CR 16
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for vehicle with expired tags seen leaving a known drug motel. Driver, Roberson, was also not wearing his seat belt. The passenger ducked down as if she were hiding something. Roberson could not initially produce a driver’s license and he sported gang tattoos. Both had extensive criminal records, including drug convictions. The court held that these factors gave LE reasonable suspicion to investigate further. Roberson then told LE that there was a small amount of marijuana in the ash tray. When LE got into the vehicle to search the ashtray, he smelled the odor of marijuana which then gave him probable cause him to search the entire vehicle.

Roberson produced a medical marijuana license and argued that said license limited LE’s ability to investigate further as the marijuana in the ashtray was permitted under the medical license. The court held that the fact that marijuana possession is legal in Oklahoma for those who are issued a valid medical marijuana license does not change the fact that marijuana possession otherwise is generally a crime in Oklahoma. Several states have determined that decriminalization of marijuana does not equate to blanket legalization and thus, the odor (or presence) of marijuana remains a factor in Oklahoma indicating criminal activity despite statutes which decriminalize marijuana possession in certain circumstances. While the production of a medical marijuana license may constitute an affirmative defense to the crime, in this case LE’s determination of probable cause was not affected given the totality of all the circumstances.

Note: Oklahoma only allows marijuana use under limited medical circumstances. It is clear, though, that legalization is coming.

United States v. Ligon (Ohio 2021) 2021 U.S. App. LEXIS 18302 (Unpub.)
Sniff of Package; Standing (Reasonable Expectation of Privacy)

Postal inspector found a package that he believed to contain narcotics based on the class of mail selected as well as the parcel’s origin, destination and size. The following day, a K9 sniffed the parcel and alerted. A search warrant was obtained and contraband found. Six days later, another parcel was suspected and a K9 alerted to that parcel as well. The same contraband as before was found. This second parcel was used in a controlled delivery operation to try to determine the owner. The parcel was left at the delivery address (contents now included a tracker) and LE watched Ligon pick it up and drive it to his residence. LE then saw Ligon run outside with the parcel and drive off. LE attempted a stop and Ligo threw the parcel out the window of his vehicle. He then evaded LE, crashed and ran off. The car was searched and parcel was recovered.

A month later, Ligon was a passenger in a vehicle that was stopped. Ligon lied about his ID, and when told LE was waiting for a K9 team, took off running. This time, he was apprehended and on his flight path was found the same contraband.

The appellate court first held that Ligon lacked standing to challenge the search and seizure of the packages. Here, Ligon neither sent the packages and they were not addressed to him personally. Even so, the postal inspector had a reasonable suspicion that both packages contained narcotics due to the parcels’ class of mail, origin, destination, and size, which the court found was a legitimate assessment considering he had several years of experience identifying drug parcels.

Note: There were other issues addressed by the court, but are not relevant to the purposes of this Update.

State v. Lazo (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 652
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for lane violation and slow speed. The automated plate reader indicated that the vehicle had been in California earlier that day and had made a similar one-day trip a few months earlier. Upon contact, LE smelled raw marijuana and saw an out of state dispensary bag in the back. LE also noticed an overwhelming smell of air freshener and a radar detector. Driver’s and passenger’s stories did not match each other’s or the plate reader information. Passenger admitted that there was a small amount of marijuana in the dispensary bag. Based on these factors, LE searched the vehicle and found contraband.

The court first held that the traffic stop for lane violations was valid. The court then stated that LE had probable cause to search the vehicle.

The court further found that LE had probable cause to search the vehicle. LE smelled raw marijuana, as well as the strong, concealing odor of air fresheners. Occupants gave conflicting accounts of their relationship and passenger’s story also conflicted with the plate reader data. LE considered the Arizona Medical Marijuana Act implications of the dispensary bag, yet when questioned about the bag, neither occupant volunteered evidence that they were AMMA-compliant. Based on the totality of the circumstances, there was probable cause to search the vehicle under the automobile exception.

Note: Arizona allows marijuana use in limited medical cases.

United States v. $128,915.00 (Illinois 2021) 2021 U.S. Dist. LEXIS 111591
Traffic Stop; Prolonged Detention;

Cook was seen by LE driving a very dirty car with a passenger window down in 30 degree weather. He was also tailgating. He also had an obstruction in his front windshield. Finally, he swerved over the fog lane. A traffic stop was conducted.

As LE approached, Cook rolled down all four windows which appeared to LE as an attempt to air out the car from possible drug odor or a masking agent odor. He had a California driver’s license and had a puzzling story. LE also noticed that he never rolled his windows up even though it was very cold; he was visibly nervous; LE also observed two large duffle bags laying flat in the rear of the vehicle and a bottle of air freshener. Cook did not own the vehicle; a Lisa Cook did. Finally, he was from the “Emerald Triangle.” After LE completed the traffic investigation, they detained Cook until a K9 team could arrive and conduct a free air sniff. About 15 minutes later, the K9 team arrived and alerted. When asked about illegal drugs, Cook said he had pot in the center console and about $120,000 in cash. LE found a few containers of pot but the duffle bags smelled of raw marijuana.

The government moved to forfeit the cash as drug proceeds.

Cook argued that LE conducted an unreasonable search and seizure by prolonging the stop to conduct a K-9 sniff. The appellate court disagreed, stating that although Cook claimed to urge the Court to consider the totality of the circumstances, as it must, his motion took a piecemeal approach. While it is true that these facts, taken in isolation, may not be enough to carry the Government’s burden, when considered together, they established that LE had a reasonable suspicion of criminal activity justifying the prolonged traffic stop, taking into account the following: Cook’s hometown was near California’s Emerald Triangle, which  has a reputation for marijuana cultivation; Cook “appeared increasingly nervous and evasive during his conversation with the DEA agents,” and that his “explanations regarding the sources of his cash did not add up;”  Cook had shaky hands and constricted pupils; two large duffel bags of the type commonly used to transport drugs because of their odor-masking qualities were found in Cook’s car; LE observed “a bottle of Ozium air sanitizer, which LE believed was being used to possibly mask a drug odor.” The fact that Cook was driving with his windows down in 30-degree weather created further suspicion that he might be airing out his car. The reasonable-suspicion standard is low and can turn on information that is less reliable than probable cause. And taken as a whole, LE could articulate several specific indicators of criminal activity—including visible nervousness, a masking agent, large duffle bags, driving with the windows down in the winter, and Cook’s hometown as a marijuana haven—that sustained a reasonable suspicion and therefore justified further investigation.

Note: This is a federal case and marijuana is still illegal at the federal level.

United States v. Hill (Illinois 2021) 2021 U.S. Dist. LEXIS 111803
Production of K9 Records; Use of Force as Unreasonable Search and Seizure

LE conducted a controlled buy on Hill who was a criminal with an extensive record, had warrants out for his arrest, and considered armed and dangerous as he was previously in possession of firearms. A high-risk felony traffic stop was conducted. A K9 team was present and the K9 was barking ferociously. Hill was slow in complying in putting his hands up although he did not attempt to run. Several commands were given to put his hands up but he made “furtive movements” with his hands while standing outside of his vehicle, like dropping his hands “towards his waistband,” “concealing them,” and reaching “toward the vehicle”-which LE perceived as signaling someone else inside the car. A less lethal munition was fired at Hill’s leg, knocking him to the ground. The K9 was then released and bit Hill on the arm. Hill was commanded to put his hands behind his back and he did not comply. The handler took the K9 off Hill and Hill was handcuffed. Contraband, including a firearm, was found.

Hill moved to suppress all evidence found in this search and also demanded production of all the K9 team’s Deployment Detail Reports. The government opposed the motions.

Despite Hill’s contention that the extensive records requested may be “potentially” favorable and material to his motion to suppress, he did not demonstrate how these records would significantly alter the facts in his favor beyond his conjecture. The Court agreed with the Government that Hill’s request for all the K9 Deployment Detail Reports from the previous three years are not material to the resolution of his motion to suppress. In addition, the court agreed that Hill had not met his burden to be granted an evidentiary hearing. Hill did not sufficiently allege that there were disputed issues of material fact that would affect the outcome of the motion. He failed to identify a definite disputed factual issue, and he did not demonstrate the materiality of a disputed factual issue. Hill neither disputed the legality of the traffic stop nor that he was traveling to conduct a sale of the apparent methamphetamine in his possession.

In addition, he did not dispute that he failed to comply with the officer’s commands to surrender without incident, precipitating the release of K9. He concedes in his factual statement that he was “not fully compliant with the officers commands”. As part of his motion to suppress, Hill attached the JPD “K-9 Deployment Detail Report” (“K9 Report”) from the night of the traffic stop and arrest. The K9 Report details that among Hill’s outstanding warrants, which included “Trafficking in Controlled Substances,” were warrants for “Possession of a Handgun by Convicted Felon,” “Wanton Endangerment (1st Degree),” and “Assault (4th Degree).” (Since Hill attached the report as evidence, the court considered it in its entirety as he waived any objection to it by offering it).

More importantly, much of the information in the K9 Report was corroborated by video camera evidence. The video showed˗˗as described in the K9 Report˗˗the level of noncompliance Hill exhibited by making “furtive movements with his hands” after “numerous commands to exit the vehicle.” The K9 Report described how LE “feared . . . Hill was planning to retrieve a handgun and escalate the situation based [on] the totality of the circumstances.” Hill does not dispute the contents of the K9 Report incorporated into his motion to suppress nor has he filed a reply in opposition to any of these facts.

Although Hill argues that the use of K9 was unreasonable, his allegations lack specificity and detail regarding exactly how the use of K9 was unreasonable or excessive during the arrest. Ultimately, Hill raises no discernable issue of material fact in his Motion that conflicts or is in dispute with the Government’s version of events. Accordingly, no evidentiary hearing is required in this case, and the Court denies Hill’s request.

As noted above, the Court has relied on the facts given in Hill’s Motion to Suppress and finds that the uncontested facts detailed in the K9 Report and corroborated by the body cam video, provide an objectively reasonable justification for the deployment of K9 to apprehend the noncompliant Hill during his arrest. The use of K9—a “certified police K9” that is “certified in obedience” and “trained in assisting with physical apprehension of suspects”- was not unreasonable given the circumstances. And as argued by the Government, under the circumstances here, even had they used excessive force, Hill’s remedy would be a suit for damages under 42 U.S.C. § 1983 (or state law) rather than the exclusion from his criminal trial of evidence that had been seized in an otherwise lawful search.

Note: Usually, the excessive force case (which is a civil, not criminal, action) is litigated after the criminal case. Not sure if one was filed here, but court clearly stated that it believed the use of the K9 to apprehend Hill was appropriate as was the duration of force (removing the K9 prior to handcuffing).

United States v. Gholston (Illinois 2021) 2021 U.S. App. LEXIS 17658
Traffic Stop; Prolonged Detention

Based on his personal knowledge and information provided by an informant, LE stopped Gholston in a vehicle described by the informant for failing to signal a turn. After lighting him up and before LE was able to stop, Gholston had already stopped his vehicle and was walking quickly away. Gholston did not respond to a directive to stop, so LE followed him on foot until he responded and returned with LE to the vehicles. LE began the procedures for issuing a citation, but there were delays. First, Gholston said his ID was in the truck, but did not respond, other than to say “huh”, to LE’s inquiry if there was a reason why Gholston didn’t want LE to retrieve the ID from the truck. Gholston instead told him his information verbally. There was a consensual search of Gholston’s person which revealed nothing of note. Dispatch informed LE that Gholston’s license was valid but he had a parking notice. Back up was then called; one of them was a K9 team who was in the area. LE also asked for the parking notice be brought to him so he could serve it on Gholston. Over the cruiser’s computer, LE told the notice officer to take his time because LE was trying to get the K9 team to respond as well. LE then realized he had not asked for insurance information from Gholston. Gholston said his girlfriend had insurance but he could not produce it. LE started another ticket for that. While LE was writing this citation, the K9 team arrived and alerted as the ticket was still printing. Contraband was found.

In this appellate review of a trial court’s ruling, the appellate court found that LE detained Gholston only long enough to complete the procedures required for the traffic investigation, and that the K9 alerted before LE had finished printing the second ticket. This was not a case in which an officer completes the activities for a stop and then detains the suspect longer in order to allow time for a K9 officer to arrive. The district court credited LE’s testimony that he never stopped working on the ticket even as he communicated with other officers. Critically, the court found that LE did not extend the stop at all, not that any delay was permissibly de minimis. Based on those factual findings, the court correctly held that this stop did not run afoul of the Fourth Amendment.

Note: This court recognized that LE can multi-task, stating “The district court’s conclusion, based on LE’s testimony, that LE did not unreasonably delay the stop in order to communicate with other officers on unrelated topics. Even if LE had to use the same keyboard, there are many reasons why he might have been able to communicate with his fellow officers without slowing down the ticket process, including his need to wait for dispatch to verify that Gholston’s ID was valid.” The defense will try to get you to adopt a singular position; either you called for the K9 team and didn’t write the ticket or vice versa. Don’t let the defense bait you into agreeing with that position; this court recognized that LE can multi-task and that multi-tasking isn’t inherently impossible. Be prepared, though, to be able to describe what happened in a chronological fashion regarding the multi-tasking.

Robinson v. Requejo (Florida 2021) 2021 U.S. Dist. LEXIS 110035
Excessive Force; Qualified Immunity

Robinson stole a Mercedes from a dealer and ran from LE at 120 mph. He crashed and fled  on foot. Handler deployed K9 at the scene to track Robinson. K9 tracked from the driver’s door of the crashed Mercedes to the bush where Robinson was hiding from LE. While this was happening, civilians told other LE that they saw a male running with an object in his hands, possibly a gun. (It turned out that Robinson was not armed). Another civilian saw the vehicle crash and then Robinson tried to climb in civilian’s vehicle. (Robinson disputed that). Civilian reported an “attempted carjacking.” After LE located Robinson, they gave commands to surrender or the K9 would be released and he would bite. Robinson did not surrender, and once K9 was deployed, Robinson grabbed K9 by the neck and pushed him away. K9 then bit Robinson, who still did not surrender. Robinson’s version is that the K9 only bit him after his surrender to LE. A civilian witness said that the bite occurred when Robinson did not surrender and was still in the bush. However, civilian said the bite duration was about 3 minutes (LE’s estimate was much shorter).

LE brought a motion for summary judgement. The appellate court found that, if a jury believed Robinson’s version of events, it could return a verdict for Robinson. Robinson’s version was that he came out of the bushes and surrendered with his hands up and his knees on the ground. It was only after he did so that K9 was sent after him and attacked him. Looking to the applicable Graham factors, the first factor weighs in favor of LE because the crimes at issue were obviously severe. However, the remaining factors favor Robinson (if one accepts his version of events as true, which is the standard in a summary judgement motion). As to the second factor, although Robinson posed an immediate threat to the safety of others during the course of the police chase and up until he surrendered, he no longer posed such a threat (at least not a major threat) when he allegedly surrendered in plain view. Although LE had reason to believe Plaintiff may be armed at the time, any threat would have been minimal if Robinson had kneeled down on the ground with his hands up as he contends. With respect to the third factor, although Robinson actively resisted arrest prior to his alleged surrender, such resistance ceased at the time of his surrender. As to the remaining factors described in state case Creshaw  ((1) the need for the application of force, (2) the relationship between the need and the amount of force used, (3) the extent of the injury inflicted and, (4) whether the force was applied in good faith or maliciously and sadistically), there was no need for the application of force once Robinson surrendered in the manner he claimed. Thus, the amount of force applied was certainly excessive in light of Robinson’s version of events, as was the extent of the injury inflicted. Further, if Robinson surrendered in the manner he claims he did, and if LE could in fact see Robinson surrender as Robinson implies, then it would be difficult to conclude that the force was applied in good faith. Therefore, a jury could certainly find for Robinson if it credits his testimony.

The real dispute here concerns whether the Court can disregard Robinson’s version of events at this stage of the proceedings (summary judgement), something LE sought to have the court do. That was because LE’s version of events, which is completely contrary to Robinson’s “surrender” version, would clearly justify the entry of summary judgment in LE’s favor (Robinson does not argue otherwise). However, disregarding Robinson’s version of events would be tantamount to rendering an improper credibility determination at a stage where the Court must accept Robinson’s testimony and sworn statements as true.

In attempting to convince the Court to disregard Robinson’s version, LE note the Supreme Court’s holding in Scott that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” But the record does not blatantly contradict Robinson’s story. To be sure, there is more evidence to support LE’s version. The only non-party eyewitness testified, like LE, that Robinson had not surrendered, and was still hiding in the bushes, when K9 was dispatched. However, simply because it is two against one, and simply because LE’s version may appear to be more believable, does not mean that the type of blatant contradiction discussed in Scott exists. In fact, in Scott, the record evidence that blatantly contradicted one side’s story was a videotape that the Supreme Court found “quite clearly contradict[ed] the version of the story.” Based on the video evidence, the Supreme Court determined that the version was “so utterly discredited by the record that no reasonable jury could have believed” it. But no such video evidence or other evidence to blatantly contradict Robinson’s version is present in this case. Therefore, the factual dispute regarding whether Robinson had surrendered, with his knees down and hands up, at the time force was applied, makes the issue of whether a constitutional violation occurred a jury issue.

The appellate court then addressed qualified immunity, holding that it should be readily apparent to any reasonable officer that an officer’s conduct is unconstitutional when that officer commands his police canine to attack someone being arrested after that person has visibly surrendered with his hands up and knees on the ground, regardless of the crime committed. Permitting a three-minute canine attack to follow in such a situation when the suspect has clearly surrendered and is not resisting would only add insult to injury. But whether the extreme version presented by Robinson depicts what actually occurred in this case is disputed and, therefore, is for a jury to decide.

Note: Here, the appellate court could not find qualified immunity on the basis of the evidence on the record because if a jury found that Robinson’s version was the truth, it is clear that allowing a K9 to bite after surrender is clearly a violation of the 4th Amendment. That is not a new concept. However, when describing Robinson’s position, the court used the words “extreme position” several times, apparently telegraphing that the court did not believe Robinson. This will hopefully assist in negotiations as this type of language from the court is rather rare.

United States v. Johnson (Missouri 2021) 2021 U.S. Dist. LEXIS 108908
Odor of Marijuana as Probable Cause

LE contacted motorist Johnson because his car was stopped in the middle of the street blocking traffic. LE turned around to contact Johnson. By this time, Johnson had pulled to the side and was parked. LE turned on his emergency lights and contacted Johnson. Johnson rolled down his window at LE’s approach. LE smelled an overwhelming odor of marijuana at that point. LE asked how much weed was in the vehicle and Johnson said we “just had a blunt and we were smoking.” Johnson claimed he had just thrown the blunt out. All occupants were removed and Johnson had a handgun on him along with a bag of marijuana.

The court initially dealt with the issue of whether LE had reasonable suspicion of a law violation for the initial contact and detention. The court found that even though LE contacted Johnson when he was legally parked, LE had reasonable suspicion to investigate Johnson blocking traffic just before the contact, since blocking traffic  was against a local ordinance.

The court went on to determine whether the arrest and search of Johnson was legal. The appellate court found that the strong odor of marijuana that was detected by LE as he approached the vehicle, along with Johnson’s statement that he’d just finished smoking marijuana, provided LE with probable cause to believe that the vehicle contained the controlled substance justifying a search of the vehicle and Johnson’s person.

Note: No real new information here. Missouri allows medical marijuana and has decriminalized (reduced to non-jail offense) personal possession of marijuana. Some courts in other states have used the decriminalized status of marijuana to hold that the smell of marijuana is no longer probable cause in and of itself, but Missouri here reached the opposite conclusion.

United States v. Louis (Florida 2021) 2021 U.S. App. LEXIS 16853
Traffic Stop; Prolonged Detention

LE saw a vehicle parked on the shoulder of a highway with a window tint violation and an expired temporary tag. A check of the registration revealed missing information and a different date of expiration that what was displayed on the vehicle. LE then activated his lights and conducted a Terry stop. There were two occupants and the driver was Louis. Louis only had a learner’s permit and could not provide registration, insurance or title. He did provide a name of the alleged owner, but that did not match the official registration in LE’s database. LE then investigated whether the vehicle was stolen and whether the tag displayed was fraudulent. The passenger did not have a driver’s license either, so Louis could not legally drive on his permit. Handler arrived as a back up officer. Questioned separately, the occupants told different stories and Louis was visibly nervous and failed to make eye contact. While one LE remained with the occupants, handler ran K9 around the car and it alerted. Inside was a gun and several kinds of controlled substances. Both occupants were arrested on warrants. LE then finished the traffic stop by issuing a citation to Louis for the infractions observed.

The court held that the initial traffic investigation mushroomed into a more extensive investigation as LE discovered that the car was not properly registered and was displaying what appeared to be a fraudulent temporary tag as LE now had objectively reasonable and articulable suspicion illegal activity occurred; i.e.; tag fraud or even vehicle theft. At this point, handler was on scene and both LE continued their investigation.

To that end, they questioned Louis and the passenger separately to “figure out why Louis was driving this vehicle”; LE spoke with Louis and handler Lopez spoke with the passenger. Doing so left them with more questions than answers, based on the conflicting stories, their nervous behavior and passenger’s eagerness disclaiming ownership of “whatever was in the vehicle.” The court held that even if LE extended the stop beyond what was justified for the traffic infractions, “the facts that came to light from the beginning of the stop—facts giving rise to reasonable suspicion that an additional crime was being committed”—justified the LE’s continued investigation. And it was during that investigation that handler walked his K9 around Louis’s car. That K9, which alerted to the presence of contraband around the glove compartment, gave them probable cause to search that location. Accordingly, the district court did not err in denying Louis’s motion to suppress the evidence recovered from the search.

Note: Nothing really new here. LE did a good job in persistently and diligently trying to determine what was going on.

United States v. Holmes (Ohio 2021) 2021 U.S. Dist. LEXIS 106562
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

Holmes was suspected of armed robbery and a shooting based on victim’s information and additional investigation. LE believed that Holmes was armed and dangerous and therefore made a plan to stop Holmes’ vehicle as they confirmed via GPS location information that he was in said vehicle. (Holmes was on a GPS monitor in another case).

Dashcam evidence depicted Holmes’ sedan with heavily tinted windows. LE used their marked cruisers to block the sedan and then ordered Holmes and two passengers out of the car. LE can be heard remarking on the strong smell of “raw marijuana” emanating from the vehicle, and that he had observed through the front windshield Holmes making furtive movements into the back seat. LE testified that he believed Holmes was hiding something. Based on the furtive movements and smell of marijuana, LE decided to search Holmes’ automobile. The search produced marijuana in a sunglass holder above the front seat and a Smith & Wesson .40 caliber firearm.

In this case, the traffic stop was justified because of the prior investigation regarding the robbery, as reasonable suspicion was based on articulable facts that Holmes was involved in a completed felony when they stopped his vehicle. In addition, Holmes’ windows were illegally tinted, a fact he admitted in his court filing.

The court then turned to the search of the vehicle. Dashcam videos depict LE inquiring about a strong odor of raw marijuana emanating from Holmes’ car. In addition, LE witnessed through the windshield Holmes making furtive movements into the back seat of the vehicle. LE, the dashcam video revealed, made multiple requests to Holmes to “show me your hands” because Holmes, LE testified, continued to reach into the back seat during the traffic stop. ATF officers had briefed local LE on the evidence linking Holmes to the shootings and the likelihood that Holmes, a felon on parole at the time, possessed the firearm. Thus, the combination of the marijuana odor emanating from the car, the ready mobility of Holmes’ automobile, and the furtive movements of a parolee associated with multiple shootings established probable cause to search Holmes’ car.

Note: Here, the court indicated that the smell of marijuana was a part of probable cause in conjunction with the investigation information regarding the shootings. Ohio has decriminalized marijuana for personal use and allows for medical marijuana. Otherwise, Ohio does not allow recreational marijuana.

Calvert v. City of Steubenville (Ohio 2021)2021 U.S. App. LEXIS 16947 (Unpub.)
Excessive Force; Qualified Immunity; Reliability Foundation

Calvert had been taken to a hospital due to suicidal ideation and was sedated. When he awoke the next evening and left the hospital, wearing a shirt, boxer shorts, and socks, hospital staff called LE to have him returned. LE initially went to the hospital, where staff told them that Calvert had fought with security guards and was not permitted to leave because he was on a “hold.” LE construed “hold” to mean a “police hold” applicable to a criminal detainee receiving medical treatment, rather than a “physician’s hold” applicable to a mental patient. Calvert was contacted walking and told to stop. Calvert told LE, “You’re going to have to shoot me.” Calvert then started to run towards an residential living facility for the elderly. LE got his K9 out and gave Calvert K9 warnings. Calvert responded saying, “Send the dog.” Concluding that Calvert was a danger to himself and others and that a physical altercation could lead to a struggle for an officer’s weapon, handler determined that the safest means to apprehend Calvert was to use K9. Upon hearing the apprehend command, K9 attacked Calvert’s upper left arm and took him to the ground. Once LE secured his other arm, handler ordered K9 to release his hold. Calvert later pleaded guilty to disorderly conduct based on his interactions with LE.

The court initially held that Calvert did not show that handler’s use of force was objectively unreasonable and violated a clearly established right. Admittedly, handler did not know whether Calvert had committed a serious crime. Handler knew only that Calvert was on some type of “hold,” had left the hospital after an altercation, and was not complying with police commands. However, Calvert’s comments to police to shoot him and release the dog, confirmed by handler’s dashboard camera video, would lead a reasonable person to believe that Calvert posed an immediate threat to himself and LE. Furthermore, Calvert’s comments, his attempted flight, and his refusal to comply with police commands gave every indication of unwillingness to surrender. Calvert’s unsubstantiated assertions that he did not flee or pose a threat were not sufficient to defeat the defendants’ well-supported motion for summary judgment.

The court went on to state that Calvert likewise did not show that the amount of force was objectively unreasonable. The use of a properly trained police dog to apprehend a suspect does not carry with it a substantial risk of causing death or serious bodily harm. See Robinette v. Barnes. LE submitted extensive documentation of K9 team’s training, and Calvert has not provided contrary evidence showing that K9 was poorly trained or had a history of spontaneously attacking suspects. Finally, Calvert has not shown that handler unreasonably prolonged the use of force by K9. Therefore, LE is entitled to qualified immunity because the use of K9 to seize Calvert did not violate clearly established law.

Note: Even though this court stated that use of a properly trained police dog to apprehend a suspect does not carry with it a substantial risk of causing death or serious bodily injury, the Supreme Court has said that that scenario has not been ruled out. Even though there has been no holding that K9 apprehension by biting is deadly force, the possibility of such a ruling based on the right facts, still exists. 

Smith v. Ornelas (Indiana 2021) 2021 U.S. Dist. LEXIS 107193
Excessive Force;

Smith was bitten by a K9 during a lockdown in custody. His version of what happened differed from handler’s version of what happened. According to the conduct report attached to the complaint, handler was called in to help lockdown Smith’s unit during an emergency signal. Smith was cleaning the showers during the lockdown and refused LE’s verbal orders to lockdown. Instead, he attempted to speak to a LE supervisor, grabbed a bowl, and tried to get ice. Handler was in front of the ice machine with his K9, and when Smith broke the 10-foot perimeter he knew to keep from K9, handler released the dog. After Smith submitted to being handcuffed, he was taken to get medical treatment for the dog bite.

According to Smith’s version, a LE supervisor had given him permission to get ice during the lockdown (which she confirms in a written witness statement). But handler was blocking the ice machine, and he was the one who caused Smith to come within 10 feet of K9. Smith was simply trying to comply with supervisor’s order to get ice and then lockdown.

The core requirement for an excessive force claim in a custodial setting is that LE used force not in a good-faith effort to maintain or restore discipline, but maliciously and sadistically to cause harm. The question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Here, the appellate court stated, taking the facts in a light most favorable to Smith, the complaint plausibly alleges that handler released the dog even though it was not needed to maintain discipline in violation of the Eighth Amendment.

Note: This was a jail K9 so the standards for excessive force are different. However, the standards for determining whether to grant a summary judgement are still the same and here, since Smith’s version was at least plausible, the motion had to be denied.

Funke v. Hatten (Nevada 2021) 2021 U.S. Dist. LEXIS 107173
Excessive Force; Qualified Immunity

Funke had contacted a church a couple of times to talk to a church leader about mental health issues, including suicidal ideation. On his third visit, he removed all his clothes, sat in front of the church, and placed money and a handgun on the ground in front of him. A church leader called 911 and reported that Funke was sitting naked in a meditation pose with a handgun in front of him. After handler and other LE arrived on scene (including an airship), Funke responded to commands to drop the gun. He did so and while Funke was walking toward the officers, handler was having some difficulty completely controlling his dog. It barked and pulled at its leash as Funke approached handler’s position. Handler then stepped on the sidewalk and started issuing commands. Funke continued walking toward LE. As Funke approached handler, other officers were moving behind Funke to retrieve the dropped handgun.

Funke walked about 75-90 feet from the handgun he dropped and then he stopped. He was standing about 20-25 feet in front of handler. Handler was directly in front of Funke on the sidewalk with the dog barking and pulling at the leash. LE then ordered Funke to lay down. Funke hesitated and then started running back down the sidewalk toward the plaza in front of the church. At this point, handler released his dog to go after Funke. The dog initially attacked another officer instead. Another officer started chasing Funke and shot Funke in the back. Funke collapsed onto the pavement immobile. Funke was approximately 30 feet away from his dropped gun. K9 then reached Funke and bit into his arm for several seconds which caused a bloody wound.

It was undisputed that Funke had not directly or verbally threatened anyone with the gun, and that he committed no serious crime. He had not raised the weapon towards others or himself. At the time he was shot in the back, he had no weapon. He had not reached down as if he intended to pick up the gun. LE did not specifically warn Funke that deadly force was going to be used. LE had time to issue such a warning before the deadly force was used and while Funke was running away from officers. No other officer fired a shot.

After Funke was shot in the back and fell to the pavement, the K9 attacked him. The K9 bit into and latched onto Funke’s left arm. The dog stayed latched onto Funke’s arm for about 15-20 seconds. The dog’s attack and bite caused Funke’s right arm to start bleeding. Funke bled profusely and pleaded with officers to remove the dog which was biting into him. Officers had to subsequently apply a tourniquet to Funke’s arm to reduce the flow of blood from the dog bite wound.

The parties’ only factual dispute was whether Funke was running to retrieve the gun or simply run away. Other than this, the parties’ disputes concern the legal effects and appropriate inferences to draw from the facts.

The Court finds that there are genuine issues of disputed fact and insufficient facts as to whether handler improperly encouraged or directed his dog to attack Funke after Funke had been shot. It is undisputed that Funke was shot and lying immobile when he was attacked by the dog. It is undisputed that Funke was not warned that he could be bitten or attacked by the dog if he did not comply with the officers’ orders. It is undisputed that the biting by the dog, which lasted approximately 15-20 seconds, created a serious and bloody injury to Funke’s arm. It is also undisputed that handler was following the dog as it ran after Funke and that handler was close enough to it to be giving it orders during its pursuit and ultimate attack on Funke. Funke was shot, bleeding and immobile by the time the dog reached him. It is unclear and disputed when and whether handler directed the dog to continue its attack after Funke was shot. As there are genuine issues of disputed fact, the Court denies summary judgment on this claim to both parties.

The Court also found that handler is not entitled to qualified immunity on this claim as there are genuine issues of disputed fact as to handler’s actions and directions with his dog. Accepting Funke’s asserted version of facts in which handler sicced his dog on Funke when he was not a threat to anyone and/or when he was under control would establish a violation of clearly established law.

Note: This is a case which perhaps could have benefitted from a bit of planning ahead of time. While there was a gun involved, a quick formation of a plan and making sure warnings were given may have either ended the encounter differently or at least put LE in a better light pursuant to the Graham factors. Also, if handler was having issues with his K9, perhaps he should have considered taking the team out of the equation, at least until the K9 was in better control. Reading between the lines, it appears Funke might argue that he was going to surrender but then saw the barking K9 that his handler was struggling with and decided he needed to get away from that. I have seen a increasing trend of cases where the subject complains that the K9 scared him and that’s why he ran. Best practice is not to give them that excuse. I did not review the issues surrounding the shooting officer as that discussion is not relevant to my review of this case in this forum.

United States v. Brewer (Kentucky 2021) 2021 U.S. App. LEXIS 17130
Traffic Stop; Prolonged Detention

Brewer was pulled over on consecutive nights for his dark window tint. Both times, a K9 alerted on the vehicle and both times, drugs and a gun were found.

First stop for dark tint: LE pulled Brewer over because they could not see into the car at all, even under street lights. When LE approached, they could see a towel placed over the dashboard that covered the interior lights. Both occupants were taken out and frisked. While the stopping officer started the citation, the K9 team arrived and did a free air sniff. Prior to the citation being finished, the K9 alerted to the car.

Second stop: A different officer stopped Brewer in a different, but still darkly tinted, vehicle. LE recognized him and got him out of the car and frisked him. The same K9 team happened to be across the street on an unrelated traffic stop; the K9 free air sniffed the car and alerted.

Brewer did not challenge the reason for the stops. However, he claimed that the stops were unduly prolonged. The court addressed the first stop first. As to the first stop, LE faced a late-night stop where they obtained Brewer and his passenger’s identification, asked them each to step out of the car, frisked them for weapons, searched for outstanding warrants against Brewer, and explained that process to each passenger. They also began writing a citation and running the car’s tags. None of these acts unlawfully prolonged the stop. Most indeed represent normal incidents to a traffic stop.

The court then addressed whether obtaining the passenger’s information and talking to her about outstanding warrants was allowed. The court held that questions unrelated to the justification for the traffic stop are not a problem so long as those inquiries do not measurably extend the duration of the stop. LE 1 questioned the passenger while LE 2 dealt with Brewer, and therefore LE 2’s separate conversation did not delay LE 1’s investigation or the stop as a whole.

As for the frisks, the court stated, LE reasonably suspected that Brewer and his passenger had guns. Both officers knew from experience that people driving with excessively tinted windows often have guns with them. Brewer and his passenger only cracked their windows, and both seemed nervous. A towel covered the dashboard lights, making it difficult to see inside the car. In countless traffic stops over their combined 12 years of service, neither officer had seen an effort to conceal a car’s interior in this way. Add to the mix that the stop happened around 1 a.m. in a “hot spot” for “violent crime,” and the court held it was fair to conclude that LE acted reasonably in frisking the two individuals.

As to the second stop,  LE knew Brewer had been found with a gun the night before in similar circumstances. That fact by itself justified the frisk. The rest of the stop consisted of the kinds of routine activities permitted by Rodriguez and Mimms and took just four minutes.

Note: This is a textbook case of how to do a traffic stop and a K9 sniff. Not only did the sniffs take place during the traffic stop investigations, there was also reasonable suspicion to expand the investigations.

Malpass v. Glore (Missouri 2021) 2021 U.S. Dist. LEXIS 104909
Excessive Force

This is a review of an inmate’s suit for damages by the court to determine if the complaint should be served on the defendant LE. This is a preliminary step to determine if there is even a cognizable claim. Malpass claimed that LE responded to a domestic disturbance at Malpass’ residence. Briefly, Malpass alleges he ran away from LE, and LE chased him and shot him multiple times. Malpass further alleges that while he lay unconscious and bleeding on the ground, handler caused his police patrol dog to attack him. Malpass suffered serious injuries. The court held this was enough for the case to start the process and have the defendant LE served with the complaint, since directing a K9 to deploy on a subdued individual is a violation of the Fourth Amendment.

Note: This is basically a screening process to determine if, given the facts pled in the complaint, Malpass was able to articulate a cognizable, or coherent, claim (a very low standard). The court held that he did here.

United States v. Celes (California 2021) 2021 U.S. Dist. LEXIS 105596
Use of K9 as Detention

LE, with extensive experience including that of drug crimes, noted a vehicle driving slowly. LE followed it until it parked and driver Celes entered a residence (although LE could not see which one). LE then saw him exit a house they believed was potentially related to the sale of drugs. LE followed Celes as he drove off until he pulled into a driveway and partially blocked it from leaving. LE and Celes both got out and approached each other. LE obtained Celes’ license and asked questions about previous arrests, warrants and warned him to keep his hands out of his pockets. Celes appeared nervous and as if he wanted to run. LE warned him not to run and told him there were dogs (K9s) just around the corner. LE then questioned Celes about drugs, even after a denial. Celes finally admitted to possessing drugs.

The reviewing court had to determine when and if there was a detention by LE to determine whether the evidence was a product of a consensual encounter or from a detention. The court concluded that Celes was detained (seized) when LE told him not to run and warned him that dogs were around the corner, along with LE’s “aggressive manner”, not advising Celes he was free to leave and the possession by LE of Celes’ ID. Therefore, LE’s directive to Celes not to run, and his threat of police dogs around the corner, clearly constituted a seizure in this case.

Note: In this case, just the threat of the presence of the K9s added to the court’s determination  that Celes was subjected to a detention rather than a consensual encounter. Because there was no reasonable suspicion of wrongdoing (a higher burden than a hunch), once the court determined there was an unlawful detention, any evidence was rendered inadmissible as fruit of the poisonous tree.

State v. VanBeek (Wisconsin 2021) 2021 WI 51
Reasonable Suspicion; Detention

LE received a call that a truck had been sitting at an intersection for about an hour and that a person approached the truck with a backpack and left without it. LE spotlighted the truck and contacted the occupants. LE questioned the occupants and they denied being there for an hour, claiming they were waiting for someone for about 10 minutes (rather the hour reported by civilian). LE asked for ID to complete his report and compare their faces to the IDs. After obtaining these documents, LE said, “Okay. I’ll be right back, okay.” The occupants replied “alright.” Neither had warrants, but one had OD’d earlier that year and one was on supervision. LE then called for a K9 team. LE then went back to the occupants and questioned them further about identity, what they were doing, where they were living, etc. LE then circled back to why they were there and they responded this time that they had been there about an hour. The K9 team arrived and occupants were removed from the truck. The K9 alerted and the vehicle searched. Contraband was found.

The appeal here posed a single question: “Whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual’s driver’s license to the officer’s squad car without reasonable suspicion.”

On this question, the court concluded that the answer depends on the totality of circumstances surrounding an encounter. The court identified the crucial test in determining whether a person is detained is whether, taking into account all of the circumstances surrounding the encounter, LE conduct would have communicated to to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Applying this test, based upon the totality of the circumstances, LE taking driver’s license back to his squad car did not amount to a seizure. LE took occupant’s licenses back to the squad car upon his request to do so and with their permissions, evidenced by their conversation: LE said, “Okay. I’ll be right back, okay?” “Alright.” This appears to be a continuation of what had been a cordial and consensual interaction. However, driver was seized when LE returned to her vehicle, withheld her driver’s license and continued to question her and her passenger in order to hold her until the K9 unit arrived. Finally, the court stated that the seizure was unlawful because, based on the totality of circumstances, LE did not have reasonable suspicion that driver was engaged in criminal activity at the time he seized her.

Note: Here, the K9 team was only involved as they were called in to do a sniff. The stopping officers were the ones who unlawfully detained the occupants and presumably performed the sniff at their request and based on their analysis of the facts. However, best practice for you is to independently determine whether there is reasonable suspicion to expand the encounter to include the sniff and/or the original investigation is still going on.

Green v. Caron (Connecticut 2021) 2021 U.S. Dist. LEXIS 102418
Excessive Force in Prison

Green alleges that shortly after a list about inmate needs was provided to correctional staff, he was confronted by correctional officers with a dog and mace and told to put his hands behind his back by a lieutenant; placed in cuffs and leg irons; transferred to a high-security prison where he was strip searched and placed in administrative detention; was issued a disciplinary report approved by a lieutenant; was subsequently found by a different lieutenant guilty of supporting the hunger strike; and was later placed in Administrative Segregation according to the decision of the Hearing Officer. Green also alleged that the officers use high level of force involving dogs, mace and tight cuffing without a good faith effort to maintain discipline. Because of this treatment, Green alleged his anxiety, depression and PTSD had worsened. The court permitted this claim to proceed for damages against the lieutenant who was indicated as being present during the use of excessive force without taking steps to intervene to prevent the alleged excessive force.

Note: This case solely determines if the inmate has stated a cognizable claim, not whether he has proved it. This opinion is of interest because the inmate claims the guards used dogs to invoke fear and that caused damages. I don’t think this will go very far, but it’s important to note when it is claimed that the presence of a K9 caused damage; that may be so, but you should be able to justify the presence of the K9 (easily done on an incident report). In addition, going forward, the claimant is going to have to show some nexus between the presence of the dog and his damages as well as attack the reason for the K9 being present. If this type of claim comes up, make sure you are in contact with your superior as well as your attorney determine what you need to do to challenge this sort of claim.

United States v. Pitts (North Carolina 2021) 2021 U.S. Dist. LEXIS 103075
Traffic Stop; Odor of marijuana as Probable Cause

Traffic stop for changing lanes without signaling and tailgating other vehicles. Upon contact, LE smelled marijuana and asked, “How much weed is in the car? I smell marijuana. I smell it right now.” Driver responded he had a blunt. Driver directed out of the car and questioned about his travel and he volunteered he had$50,000 in cash. LE told driver he was going to use his K9 to sniff the car an explained how K9 are used. He also patted driver down. Driver responded, “Can I just tell you where everything is?” He then claimed he had marijuana in a bag on the rear seat. LE then proceeded with the K9 sniff and the K9 alerted.

The court held that the law is clear in North Carolina. If a police officer smells marijuana in the passenger compartment of a vehicle after a traffic stop, he has a justifiable reason to extend the traffic stop and probable cause to search the vehicle for contraband under the automobile exception to the Fourth Amendment. In addition, a K9 sniff is also permissible if it is performed within the time reasonably required to perform an initial traffic stop or otherwise permitted by the articulable suspicion for an extended stop.

When LE leaned in to talk to driver from the passenger seat side of the car, he immediately detected the strong odor of marijuana. This occurred seconds after he approached driver’s car and well within the time permitted to conduct a traffic stop. LE’s verbal articulation of his suspicion that driver possessed marijuana in his car was recorded on his dash cam. Moreover, driver confirmed LE’s suspicion by admitting that he had a “blunt” in the car. At that point, LE was permitted to extend dirver’s detention to investigate illegal drug activity based on the specific and articulated fact that driver’s car reeked of marijuana and driver said he a “blunt” in the car. The marijuana odor and driver’s admission also provided LE with probable cause to search the vehicle for illegal drugs.

The court summed up: LE was allowed to detain driver after witnessing him commit a traffic violation. During this detention, LE formed a “reasonable suspicion” of ongoing criminal activity—i.e., possession of marijuana—permitting driver’s extended detention. Probable cause for LE’s search of driver’s rental vehicle under the automobile exception to the Fourth Amendment included the odor of marijuana in the car, driver’s admission that he possessed a blunt, driver’s statement that he had $50,000 cash, the wad of credit cards in his pants pocket (discovered during pat down), driver’s subsequent admission that he had more marijuana in a bag on the rear seat of the car, and the K9 alert. Therefore, the motion to suppress was denied.

Note: Marijuana is illegal in North Carolina, but possession of a small amount has been decriminalized.

State v. Malloy (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 604
Traffic Stop; Consent

Traffic stop for speeding. Passenger, Malloy, was the registered owner of the car and started looking up her insurance information on her phone. Malloy was shaking and LE told her to relax. She also provided her ID along with the insurance information on her phone. LE then discovered that the car was recently purchased with no financing and that it had been across the Mexican border a few times since the purchase. Once the warning citation was completed, LE had driver sign and then said he would print it for driver. LE then asked Malloy for consent to search; she said no. LE then asked if he could have K9 sniff the vehicle. Malloy agreed. LE then radio’d for a K9 team to respond. LE then returned all documents, including the citation, and told them the K9 team was on its way. The team arrived 15 minutes later and alerted to the vehicle within two minutes.

Malloy then claimed that her consent was coerced and the evidence found in the car should be suppressed. The appellate court held that the traffic stop for speeding was valid. Also, the court held that asking Malloy for her ID, to which she voluntarily complied, did not extend the traffic stop. They also held that up to the point in which LE explained the citation to the driver, LE was engaged in the traffic investigation. However, after that point when LE asked more questions of the driver, the court held that those questions unlawfully extended the stop and therefore impermissible.

Further, the court held, after LE ultimately obtained driver’s signature—at which point the state concedes the mission of the traffic stop was complete—he immediately asked driver for consent to search. But he did not first provide the citation or return the driver’s licenses and registration. By retaining the licenses and registration while asking for driver’s and Malloy’s consent, LE ensured that they were not free to leave and continued their detention beyond the scope of the traffic stop.

The court went on to hold that the continued detention was not supported by consent or independent reasonable suspicion of criminal activity. Malloy’s consent to the dog sniff (which was not even required) did not amount to consent to prolonged detention. The court put no weight on evidence that Malloy was nervous and discounted, with the government’s concession, the trips to Mexico. The vague answers regarding their travel also were considered to be of little weight and were insufficient to establish reasonable suspicion.

The court then held that even if driver and Malloy’s consent was voluntary, their consent was tainted by the unlawful detention because the detention was not sufficiently attenuated from the seizure. The time elapsed was short, and there were no intervening circumstances. Moreover, though the incomplete record prevents a fulsome evaluation of LE’s motives, the law clearly forbade his extension of the detention both when he asked further questions of driver and when he asked for the consent. Further, his testimony tends to support the conclusion that he deliberately extended the detention for the purpose of conducting an investigation separate from the traffic stop—he testified that his customary request that drivers exit their vehicles is at least partially based on his desire to “talk to the occupants a little bit more,” and he testified that he intended to ask Malloy questions about her trip.

Note: This court did what federal authority tells courts not to do: dismantle the factors that support reasonable suspicion one by one in a piecemeal fashion. In addition, this was aided in the fact that the government conceded their strongest piece of information, the multiple trips to Mexico, was of little weight. Not sure why that concession, or the concession that the traffic stop was over at the time driver signed the citation, were made. Odd.